Executor Risk

Mistakes Often Appear After the Process Has Started

Many executors contact a lawyer only after something has already gone wrong.
Common issues include incomplete or incorrect probate applications, missed filings, delays in accessing estate funds, disputes between beneficiaries, or pressure from banks and institutions that require formal authority before releasing assets. By the time these issues surface, options are often limited and delays are already in motion.
Probate is not just a filing exercise. It is a legal process that places real responsibility on the executor from the moment they begin acting.

Real Property Creates Time Pressure and Financial Exposure

Estates involving real property carry elevated risk for executors.
Mortgages, insurance, property taxes, maintenance costs, and pending sales often require immediate attention before estate funds are available. Executors may be forced to make decisions or advance funds personally while waiting for court approval.
When property is involved, delays are not just inconvenient. They can create direct financial exposure.

No Will or Uncertainty Around Authority Increases Risk

Risk also increases when there is no Will, uncertainty about the validity of a Will, or questions about who has authority to act.
In these situations, executors may unknowingly take steps before they are legally authorized. Acting too early or without clarity can create personal liability that is difficult to unwind later.

Multiple Beneficiaries Increase Scrutiny

Estates with multiple beneficiaries add another layer of complexity.
Even when relationships are cooperative at the beginning, disagreements can arise when timelines extend, funds remain frozen, or decisions require explanation. Executors are often required to justify every action they take, sometimes long after the fact.

Accounting and Record Keeping Are a Legal Obligation

One of the most underestimated executor responsibilities is bookkeeping.
Executors are required to account for every dollar that moves through the estate, including income, expenses, taxes, property related costs, and any payments made personally with the expectation of reimbursement. Reimbursement is not automatic. It depends on proper documentation and clear records.
When beneficiaries request an accounting, missing or informal records can lead to disputes, delays, or challenges to reimbursement.

Executor Responsibility Means Personal Exposure

Serving as an executor is not symbolic. It is a legal role with personal responsibility.
Executors can be held personally liable for errors, omissions, or decisions made without proper authority. Good intentions do not eliminate risk.

Early Legal Oversight Reduces Exposure

Early legal guidance is not about speed alone. It is about reducing risk before it becomes exposure.
With proper oversight, executors can confirm authority, avoid application errors, protect themselves from claims, and ensure estate obligations are handled correctly from the start.

Clarify your personal exposure as executor before mistakes occur

Varity Law’s Focus

Varity Law focuses on complex probate matters where executor risk is real.
This includes estates involving property, multiple beneficiaries, uncertainty around a Will, elevated tax or reporting obligations, or time pressure from institutions.

When to Seek Advice

If you are unsure whether probate applies, whether a Will is valid, or whether your actions could create personal risk, that uncertainty is the signal to speak with a lawyer.

BOOK A NO-OBLIGATION CALL

Estate for Minors

When there are one or more beneficiaries who are under 18 years old, then the application becomes much more difficult. Minors cannot legally own property or open bank accounts in only their names. At the same time, minors cannot consent to give up their inheritance, unlike adult beneficiaries. This creates a huge dilemma: the minor must receive their inheritance, and at the same time the inheritance cannot be put into their names.

There are two solutions to this problem. #1, and the more common solution, is for the Court to hold the minor’s inheritance (for free) until the minor becomes 18. However, the Court will not make any investments that have any risk, so at most they will invest the money in GICs. During this time, if the minor’s caretakers require assess to the inheritance to pay for the minor’s necessary expenses, such as education and medical bills, then they must apply to the Court each time they need money. The Court will be strict on assessing whether the expense is a necessity for the minor and whether the caretaker can afford to pay for that expense themselves without access to the minor’s inheritance.

The 2nd solution is to file a Guardianship application, which involves appointing an adult Guardian of Property for the minor. This is different from an estate trustee, who only needs to distribute the estate right away after probate is approved. The Guardian for Property must hold the property for as many years as it takes for the minor to become 18 years old.

While it seems that the Guardian are given more freedom when it comes to investment and spending on behalf of the minor, the Court will stringently analyze a financial plan submitted by the Guardian regarding how they will manage the minor’s inheritance. The Court will not tolerate any at risk investments or unnecessary spendings. Also, the Guardian for Property is almost always required to buy a bond (costing 5% of the minor’s total inheritance) for every single year that they are managing the minor’s inheritance.

Probate Applications: Without a Valid Will

Up to 70% of our probate clients do not have a valid Will. This means we must prepare and submit the much harder, Probate without a Will application.

When there is no Will, if the Court has any doubt that:

There may be a conflict of interest between the executor and the beneficiaries;
The executor does not have an exhaustive list of eligible beneficiaries (there may be missing beneficiaries);
There are conflicts or disagreements between the beneficiaries;
The executor is not credible or trustworthy

Then the Court will ask the executor to use his/her own money to buy a bond insurance, which usually costs 5% of the entire estate value.

When the deceased has no Will, the only people who may receive the inheritance are those related to the deceased by blood, adoption, or marriage, in order of priority.

For instance, if the deceased have spouse and children, then his/her parents, siblings, and other relatives would not be entitled to any inheritance or even notice that the probate application has been submitted.
Common-law partners are not eligible as beneficiaries, when there is no Will.

The person applying to become executor must provide details of the deceased’s assets and a comprehensive list of the deceased’s eligible beneficiaries.

Lastly, as the probate application to Court is very technical and many documents require notarization by lawyers, the best approach is to hire an experienced estate lawyer to handle this process. Otherwise, the application is often rejected by the Court as being incomplete or inaccurate.

Probate Applications: With a Valid Will

Probate with a valid Will is much easier than without a Will. Unfortunately, to date only 30% of our clients have a Will.

The key is on having a valid, or accurate Will. This means that the Will must satisfy 8 requirements. For more information, please visit our Estate Planning Page.

While some deficits can be fixed, like doing an Affidavit of Execution with one of the witnesses who signed on the Will, if he/she is still alive and accessible; other mistakes cannot be fixed, such as one of the witnesses being a beneficiary or spouse of a beneficiary.

The beneficiaries on the Will must be specifically named. Having vague phrases like my children is unhelpful because then the executor must locate all of the deceased’s children and the Court will likely require a bond insurance before issuing the approval (costing 5% of the entire estate value).

If there is a mistake that cannot be fixed, then a Probate Without Will application must be submitted instead.

Gathering Estate Assets

The probate application requires the executor to provide a detailed list of ALL the assets owned by the deceased. This includes real estate properties, bank accounts, vehicles, investments… and their value. So how does one get this information?

Ideally, the deceased would have kept a list of assets owned during his/her life (as is the case when clients do estate planning with our firm). If not, then the executor must spend a lot of time searching for the assets:

Real Estate

If the executor knows the address of the deceased’s real estate, then as lawyers (in both real estate and wills & estate), we can easily get the deed from the Land Registry Office (LRO). If not, then we must go through the long process of searching the deceased’s name in each municipal LRO office. Also, when multiple property owners have the same name, we must examine each deed to ensure we get the right one.

Once we find the properties, the executor should hire a realtor or professional appraiser to prepare a comparative report, which will provide a good estimate of how much the property is worth in the year of the deceased’s death.

If there is a mortgage on title, then we must get a mortgage information statement from the bank, to know the amount of mortgage outstanding. This is the only value that may be deducted from the total estate value for Estate Administration Tax purposes.

Bank accounts and Investments

The executor should be going to each bank in which the deceased had an account or a bank access card to set up an Estate Case. This process may require the lawyer to prepare and notarize some documents, and in some cases, accompany the executor to the bank appointments.
After the Estate Case is established with the banks, the executor would be given a summary of all the bank account balances and investments owned by the deceased. Those accounts would also be labelled as “frozen” and all pre-authorized payments would be cancelled. This stops those accounts from being depleted before the beneficiaries can receive their inheritance.

Vehicles

All vehicles owned by the deceased must be listed on the probate application, with their value estimated by second hand vehicle vendors, Service Ontario, or car dealerships.

Companies

If the deceased owned any companies and there is NO Corporate Wills, then the corporate accountant or a professional appraiser must do an estimate of how much the corporation is worth. This information must be recorded on the probate application.

Other assets

Any other type of assets that have monetary value and owned by the deceased must also be listed on the probate application, including jewellery, paintings, etc.

Creating Estate Case and Cancelling all PAPs

The first step to estate administration is telling the banks and other institutions that the person in question has passed away. Unless the executor does this themselves, there is not really any “automatic” way that the banks can be aware of this.

This will result in an “Estate Case” being created with the banks and other institutions, like mortgage lenders. That way, if any routine payments like mortgages are not made on time, the lenders would know the deceased is not doing that maliciously and on purpose, but rather it’s because he/she has passed away. This usually significantly reduce the risk of the banks starting selling off the estate assets like the estate property.

They will usually wait until the probate application has been approved before proceeding with legal actions.

Further, the lawyer executor would ensure that banks have cancelled all pre-authorized payments, such as monthly payments for internet fees, property taxes, etc. when creating the Estate Case. This prevents the estate account from being depleted and the beneficiaries receiving less inheritance at the end.

Filing Estate Administration Taxes and Income Taxes

For any estate value above $50,000, the executor must pay a 1.5% Estate Administration Tax on all values above $50k. This must be done within 180 days of receiving probate approval. Specifically, a detailed information statement must be filed with the Ministry of Finance and the taxes payable must be made into a bank draft to be delivered to the Court that approved the probate in the first place. Given the technicality of the two tasks, an estate lawyer is best equipped to handle them.

Also, the executor must file the deceased’s last year of income taxes, called terminal income taxes, with the accountant. This is a complicated filing, as all of the deceased’s assets are considered sold to the beneficiaries at fair market value. The lawyer executor should take reasonable steps to reduce income taxes payable, such as selling the deceased’s property in the estate’s name, in the year of the deceased’s passing, to qualify for the principal residence exemption (no taxes payable when the principal residence is sold).

Gathering Information about the Deceased’s Assets and Transferring Assets

Once probate approval is given, the lawyer executor must gather detailed information about the deceased’s assets.

Bank Accounts

Correspondence with each bank’s estate department is very technical. In order to avoid liability, the banks will always require the executor to sign and notarize many documents before releasing the funds.

Also, since dealing with estate is often considered a non-urgent task with the banks, frequent follow-ups are required.

The lawyer is much better equipped in dealing with the bank’s estate department given their professional knowledge and experience. They can easily prepare and notarize forms, and can correct the bank’s instructions when they are inconsistent with the law.

Investments Accounts

Other than the banks, the deceased may have accounts with investment institutions such as MICs. Those institutions often require more complicated documents and correspondence before funds can be released. Again, this task is much easier for a knowledgeable and experienced estate lawyer.

Real Estate

Ideally, your lawyer executor should be both a Real Estate Lawyer and Wills & Estates Lawyer. That way, they can transfer any real estate owned by the deceased into the beneficiaries’ name. Or they can close the sale of property in the name of the estate and then transfer the sale proceeds to the beneficiaries. Being an expert in both areas of law means they would only charge the estate one single fee and not two legal fees.

Vehicles

The lawyer executor would purchase a Used Vehicle Information Package and facilitate the transfer of vehicle ownership at Service Ontario. Again, any documents that require preparation and notarization can easily be done by the lawyer executor.

Probate Application with Lawyer as Executor

When assessing the probate application, the Court will likely require the executor to purchase a bond insurance (often costing 5% of the entire estate) when:

The executor is a foreigner;
One or more beneficiaries are minors (under 18 years old);
There is a conflict of interest between the executor and the beneficiary (e.g. the executor is the ex-spouse of the deceased, and the beneficiary is their child)
There is no valid Will.

Especially in the above situations, appointing an experienced Estate Lawyer as the executor may be the best option. Unlike non-professional executors, lawyers have professional insurance and must be audited by the Law Society in every year they act as executor. So it is very unlikely for the Court to require a lawyer executor to pay bond insurance.

Also, with lawyer as executor, the estate should not be double-charged: once for legal fees and once for executor fees. Only the executor fees should be charged.