In London, Ontario, the Estate Trustee (executor) is the only person legally authorized to file a “survival action” for the deceased’s personal losses, such as pain and suffering experienced before death. This claim is governed by the Ontario Trustee Act and is filed at the Superior Court of Justice, with the probate fee (Estate Administration Tax) roughly calculated at 1.5% of the estate’s total value.
When someone is fatally injured in an accident, their legal rights do not simply disappear upon their passing. In Ontario, the law recognizes that a person who suffers a wrongful death leaves behind two distinct types of legal claims. The first type belongs to the surviving family members for their grief and lost support. The second type belongs to the deceased person themselves for what they endured in their final moments.
This is where the Estate Trustee—commonly known as the executor—steps in. 🤝 The executor has the heavy legal responsibility of stepping into the shoes of the deceased to file a civil lawsuit on their behalf. If you have been named the executor in a loved one’s Will in London, it is crucial to understand your unique role in the litigation process. Engaging an experienced local law firm early on will help you manage these complex legal duties.
Step-by-Step Process in London, Ontario
Managing an estate claim requires navigating both the probate courts and the civil litigation system. Whether you are finalizing affairs in the Westmount neighbourhood or downtown London, all official filings will run through the Superior Court of Justice on Dundas Street.
Step 1: Securing Your Legal Authority
Before you can sue anyone, you must legally prove you are the Estate Trustee. 📄 If there is a Will, it will name you directly. However, you will likely still need to apply to the London courthouse for a Certificate of Appointment of Estate Trustee. If the person died without a Will (intestate), a close family member must apply to the court to be appointed as the administrator of the estate before any lawsuit can move forward.
Step 2: Identifying the Estate’s Damages
Under the Ontario Trustee Act, the executor sues for “survival claims.” This includes the pain and suffering the deceased experienced between the moment of the accident and the moment of death. It also covers actual financial losses incurred by the estate, such as damaged property (like a totaled vehicle), ambulance bills, and funeral expenses. The executor must gather all receipts and medical records to quantify these damages.
Step 3: Hiring a Wrongful Death Law Firm
An executor should never attempt to negotiate an estate claim with an insurance company alone. ⚔️ You have a fiduciary duty to act in the best interests of the estate’s beneficiaries. By hiring a specialized London personal injury law firm, you protect yourself from personal liability. The lawyer will draft the Statement of Claim, ensuring both the estate’s claims and the family’s personal Family Law Act claims are combined into one cohesive lawsuit.
Step 4: Distributing the Settlement Funds
When the lawsuit is eventually settled or won at trial, the compensation awarded for the “survival claim” flows directly into the deceased’s estate. Unlike family claims which are paid directly to the individual relatives, the estate’s portion must first be used to pay off any of the deceased’s outstanding debts or taxes (including CRA obligations). After debts are cleared, the executor distributes the remaining funds according to the instructions in the Will.
How Much Does it Cost in London?
Fulfilling your duties as an executor involves some administrative and legal costs. 💰 Here is a look at what you can expect as of April 2026.
| Expense Type | Estimated Cost (CAD) | Description |
|---|---|---|
| Estate Administration Tax | ~$15 per $1,000 | Ontario’s probate tax. The first $50,000 of the estate is exempt from this tax. |
| Civil Court Filing Fee | $359 | To officially launch the Statement of Claim at the Superior Court. |
| Lawyer Contingency Fee | 25% – 33% | The law firm takes a percentage of the final lawsuit settlement, minimizing upfront costs. |
| Executor Compensation | Up to 5% | Executors can legally claim a percentage of the estate value for their time and effort. |
How Long Does the Process Take?
The timeline for an executor is often lengthy. 🕐 First, obtaining the Certificate of Appointment from the London probate court typically takes 2 to 6 months. Once you have the authority to sue, a complex civil wrongful death lawsuit can take anywhere from 2 to 4 years to resolve through mediation or trial. You cannot finalize and close the estate until the lawsuit is completely concluded and the funds are properly distributed.
Frequently Asked Questions (FAQ)
What happens if the deceased died instantly?
If the victim passed away instantly upon impact, the estate generally cannot claim damages for “pain and suffering” because there was no time period of suffering. However, the executor can still sue for property damage, funeral costs, and other out-of-pocket expenses.
What if the named executor refuses to file a lawsuit?
If an executor refuses to act, or is dragging their feet, the beneficiaries can apply to the Superior Court of Justice to have the executor removed and replaced with someone willing to protect the estate’s legal interests.
Are estate settlement funds taxable by the CRA?
Generally, compensation for personal injury or wrongful death is tax-free in Canada. However, if the settlement includes a large portion for “lost income” prior to death, that specific portion may be subject to income tax. A forensic accountant should be consulted.
Does the executor pay legal fees out of pocket?
No. An executor is not expected to use their own money. Wrongful death lawyers typically work on a contingency fee, meaning they are paid from the settlement. Any necessary upfront expenses can be paid using funds already existing in the estate’s bank accounts.
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