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Your Genuine Best Executor Choice May Not Be Your Adult Child: Our Astonishing 19-Year Analysis of Estate Litigation

Your Genuine Best Executor Choice May Not Be Your Adult Child: Our Astonishing 19-Year Analysis of Estate Litigation

Table of Contents

Summary Highlights

  • Many Ontario parents name a spouse or adult child as executor because it feels natural and trustworthy.
  • Recent Ontario cases show that a family trustee can face personal liability, removal, personal costs, and loss of compensation.
  • In Flowers v. Flowers, an estate remained incomplete for nearly 19 years, and the trustee was denied all compensation.
  • In Childs v. Childs, the court passed over all four named sibling trustees and appointed a neutral professional trustee.
  • An executor must meet strict deadlines involving the Estate Information Return Ontario, estate taxes, creditor claims, and final distributions.
  • A professional estate trustee may be appropriate where the estate is complex, the family is divided, or the proposed trustee lacks time or financial expertise.
  • If you have already been named, you may be able to renounce before intermeddling or obtain professional estate trustee services.

Introduction

Why your adult child may not be the best choice for your executor is not a conclusion that applies to every Ontario family. Many adult children administer estates carefully and responsibly. The issue is whether your chosen executor has the time, impartiality, technical ability, and emotional capacity to manage a legally demanding fiduciary role.

A Will appointment is not simply an expression of trust. As an estate trustee Ontario, your child may need to secure property, obtain a Certificate of Appointment of Estate Trustee, value assets, file tax returns, respond to beneficiaries, and distribute the estate only when it is safe to do so.

Recent Ontario decisions provide practical lessons about what can happen when the appointment does not work.

Why Naming a Family Member Is the Default in Ontario

Parents often appoint a spouse or adult child as executor because that person is familiar with the family’s affairs. The appointment may also appear less expensive than hiring a professional.

Those reasons are understandable. However, affection and trust are not the same as impartiality, financial skill, or availability.

A family executor may also be:

  • A beneficiary with a personal financial interest.
  • Involved in disputes with siblings or other beneficiaries.
  • Uncomfortable refusing requests for advances or loans.
  • Too busy to manage the estate promptly.
  • Unfamiliar with tax filings, valuation, accounting, and court procedures.
  • Personally affected by decisions involving the family home or business.

An estate trustee owes strict duties of loyalty, prudence, impartiality, and accountability. The trustee can hire lawyers, accountants, real estate professionals, or other advisors, but accountability cannot simply be delegated. The trustee remains responsible for supervising the administration and protecting estate assets.

The Hidden Cost: Personal Liability Is Not Limited to the Estate

A common misunderstanding is that executor mistakes are paid for only from estate assets. That is not always the case.

An estate trustee may face personal liability for losses caused by negligence, delay, unauthorized distributions, self-dealing, poor record-keeping, or failure to comply with tax obligations. The court may order the trustee to repay money, pay costs personally, or forfeit compensation.

Common personal liability triggers include:

  • Distributing assets before the six-month dependant support period has closed.
  • Distributing the estate before obtaining a CRA Clearance Certificate.
  • Missing the 180-day Estate Information Return Ontario deadline.
  • Taking compensation before obtaining beneficiary consent or court approval.
  • Co-mingling estate and personal funds.
  • Failing to keep contemporaneous books of account.
  • Using estate assets for personal purposes.
  • Failing to protect or insure estate property.
  • Allowing family conflict to stop the administration.

The Ontario Trustee Act provides for a fair and reasonable allowance for the care, pains, trouble, and time involved. That does not make compensation automatic.

Under Rule 74.17(1) of the Rules of Civil Procedure, the statement of compensation must be included in the accounts filed for a passing of accounts. The usual guideline is often described as 2.5% of capital receipts and disbursements, 2.5% of revenue receipts and disbursements, plus 0.4% annually for care and management. This is sometimes summarized as approximately 5% of the estate, but it is only a starting point.

The court considers the estate’s size, the responsibility involved, the time spent, the skill shown, and the results achieved. Compensation may be reduced to zero.

Case Study 1: Flowers v. Flowers , 19 Years and Zero Compensation

In Flowers v. Flowers, 2026 ONSC 3524, Olga Flowers died on May 11, 2007. Her daughter, Donna, became estate trustee and received her certificate in October 2007.

By the June 4, 2026 hearing, the estate was still not fully administered, nearly 19 years later.

The court found serious problems with the administration. Donna could not produce complete accounting records for the estate’s bank accounts. Instead of an affidavit verifying proper accounts and a formal statement of accounts, she provided a narrative affidavit.

The court also considered that:

  • $272,538.78 had been transferred from the estate to her own counsel in trust.
  • She admitted borrowing $185,000 personally.
  • Estate and personal funds had been co-mingled.
  • The conduct amounted to self-dealing.
  • The estate required court intervention to determine what had happened.

The court declined to pass her accounts. It ordered her to repay $6,811.22 and denied her compensation entirely. Costs were adjourned, leaving open the possibility of a personal costs award.

The central lesson is direct: a proper accounting is a condition precedent to compensation. Good intentions do not replace records, transparency, or timely administration.

Case Study 2: Childs v. Childs , When the Court Passes Over Every Named Trustee

In Childs v. Childs, 2026 ONSC 801, four adult children were named as estate trustees in their mother’s 2009 Will.

The Will contained a majority-rule clause. That provision did not solve the problem. The siblings were divided into two camps and split two-to-two on major decisions. Their prior litigation and deeply rooted mistrust made collaboration impossible.

The court passed over all four named trustees and appointed a neutral professional estate trustee. The decision shows that a majority clause is not a complete solution where co-trustees are entrenched in conflict.

The court generally respects a testator’s choice. However, that choice can be displaced where continuing with the named trustees would jeopardize the proper administration of the estate or the interests of beneficiaries.

A similar result occurred in MacKinnon v. MacKinnon, 2025 ONSC 2426, where family trustees failed to progress the administration. A professional trustee was appointed, and full-indemnity costs were awarded, including a personal portion against one trustee.

LaRush v. LaRush et al., 2026 ONSC 2329 also reinforces that good intentions do not excuse poor documentation, valuation, tax, or administration decisions.

What A Family Executor Faces in 2026

The 2026 estate administration environment requires more than locating a Will and dividing assets. You may need to:

  1. Obtain a Certificate of Appointment of Estate Trustee.
  2. Calculate and pay estate administration tax Ontario based on accurate asset values.
  3. File the Estate Information Return Ontario within 180 days of receiving the certificate.
  4. Secure real estate, vehicles, valuables, and digital assets.
  5. File the deceased’s terminal T1 return and any required estate tax returns.
  6. Apply for a CRA Clearance Certificate before final distribution.
  7. Keep sufficient reserves for tax, debts, expenses, and unresolved claims.
  8. Maintain a complete ledger and supporting documents.
  9. Communicate consistently with beneficiaries.
  10. Prepare for a passing of accounts if required.

A probate audit 2026 or Ministry of Finance review may identify differences between the probate application and the Estate Information Return. Incorrect real estate values, omitted accounts, and incomplete records can create further questions and delay.

Family Member vs. Professional Estate Trustee in Ontario

Consideration Family Member as Estate Trustee Professional Estate Trustee
Impartiality and family conflict May be personally involved in disputes and beneficiary decisions Independent third party with no family alliances
Subject-matter expertise May have limited experience with tax, accounting, and probate May have CPA, Licensed Insolvency Trustee, legal, or financial expertise
Personal liability exposure Direct exposure for errors, delay, and improper distributions Professional processes can reduce administration risks
Record-keeping and passing of accounts Must create and maintain records personally Formal accounting systems and reporting procedures
Time and availability Estate work competes with employment and family responsibilities Dedicated resources and structured administration
Compensation and fees May claim compensation, but it can be reduced or denied Professional fees are disclosed and charged for services provided
Long-term or ongoing trusts May lack the capacity to manage continuing obligations Better suited to ongoing trusts, businesses, and complex assets

When a Family Executor Still Makes Sense

A family executor may be appropriate where the estate is simple, the beneficiaries cooperate, and the proposed trustee has sufficient time and organizational ability.

For example, the appointment may work where:

  • Assets are limited to a residence, bank accounts, and ordinary personal property.
  • There are no business interests or complex investments.
  • Beneficiaries agree with the Will.
  • The family member can keep separate estate accounts and detailed records.
  • The person understands that being a beneficiary does not permit preferential treatment.
  • Professional legal and accounting advice is available when needed.

The goal is not to remove family members from every estate. The goal is to avoid appointing someone simply because they are the oldest child, closest relative, or most convenient choice.

How to Choose an Executor and Build in Safeguards

When reviewing your Will, ask whether the proposed trustee can act impartially and complete the work under pressure.

You can also build safeguards into the estate plan:

  • Appoint a professional estate trustee where conflict or complexity is likely.
  • Use a co-trustee structure only where the co-trustees can cooperate.
  • Include a clear tie-breaking mechanism if there is more than one trustee.
  • Name an alternate trustee.
  • Give the trustee clear powers to sell property, retain professionals, and manage investments.
  • Maintain an up-to-date asset and liability inventory.
  • Tell the proposed trustee where the Will and key records are located.
  • Consider professional estate trustee services from the beginning rather than after a dispute develops.

A co-trustee or advisor can help, but retaining assistance does not automatically eliminate the family trustee’s legal responsibility. If the objective is to remove the family member from the fiduciary role, a professional should be appointed as estate trustee or the named person should renounce before intermeddling.

If You Have Already Been Named and Are Worried

If you have been named as executor, you do not have to decide alone or immediately take on every task.

You may have three practical options:

  1. Act with professional support. You remain estate trustee while qualified professionals assist with probate, tax, accounting, valuation, and beneficiary communication.
  2. Renounce before intermeddling. If you have not begun administering the estate, you may be able to formally renounce using the applicable court process, including Form 74G.
  3. Hire professional estate trustee services. A professional can act as the neutral estate trustee, particularly where there is conflict, complexity, or concern about personal liability.

Do not distribute assets, transfer property, or use estate funds for personal purposes while you are deciding. Obtain advice promptly so your actions do not unintentionally prevent a simple renunciation.

FAQs

Should I never appoint my adult child as executor?

No. An adult child may be suitable for a straightforward estate with cooperative beneficiaries and manageable assets. The appointment should be based on capacity and suitability, not family status alone.

Can an executor be personally liable in Ontario?

Yes. Personal liability may arise from improper distributions, tax errors, self-dealing, co-mingling funds, inadequate records, unreasonable delay, or other breaches of fiduciary duty.

What is the usual estate trustee compensation in Ontario?

Courts often begin with a guideline involving capital and revenue receipts and disbursements, plus care and management. The amount is discretionary and may be reduced or denied. The general estate trustee compensation Ontario framework does not guarantee payment.

Can a professional estate trustee prevent family conflict?

A professional cannot guarantee that beneficiaries will agree. However, an impartial trustee can reduce emotional pressure, provide consistent reporting, and make decisions according to the Will and applicable law.

Can I renounce after I have started dealing with the estate?

Usually, simple renunciation is available only before intermeddling. If you have already taken substantive steps, a court application and formal accounting may be required.

When should I consider changing my Will?

Review the appointment if family relationships have changed, a proposed trustee lacks time or capacity, the estate has become more complex, or the person you appointed would be placed in a conflict.

Conclusion

Choosing an executor is one of the most important decisions in your estate plan. Many family trustees do excellent work, but recent Ontario decisions show the cost of choosing by default.

If your estate involves conflict, real estate, private businesses, significant tax exposure, ongoing trusts, or beneficiaries who do not cooperate, an independent professional may be the safer choice.

Smith Estate Trustee Ontario provides impartial estate administration services in Ontario, including probate applications, asset protection, tax coordination, accounting, and beneficiary distributions. Contact us to discuss whether a family trustee, supported trustee, or professional estate trustee is appropriate for your circumstances.

Disclaimer: This analysis is for educational purposes only and is based on the cited sources and professional expertise as an Ontario Estate Trustee and a Licensed Insolvency Trustee. The information provided does not constitute legal or financial advice for your specific circumstances. Every situation is unique; the outcomes discussed may not apply to your particular case. Please contact Smith Estate Trustee Ontario to discuss your specific needs.

About the Author:

Ira Smith is President at Ira Smith Trustee & Receiver Inc., a CPA CA and a Licensed Insolvency Trustee serving clients across Ontario. His experience includes acting as a court-appointed Estate Trustee in Ontario, giving him practical insight into navigating challenging situations to achieve optimal outcomes for all beneficiaries. Ira stays current with landmark developments, ensuring his clients benefit from a cutting-edge understanding of their rights and options.

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