Can a Beneficiary Live in the Estate House Before Sale in British Columbia?

A child, a partner or another family member is living in the house when the owner dies. The will says the house is to be sold, or to be shared among several people, and the person living there wants to stay in the meantime. Others want the sale to happen.

This article explains who generally controls the property, what an executor can reasonably require, and where money and insurance questions tend to arise. Each situation turns on the will, how the home was owned, and the facts, so a lawyer should confirm the details.

This article covers the law of British Columbia.

Who controls the house

On the owner's death, land without a right of survivorship devolves to and vests in the deceased's personal representative, who holds it in trust for the person beneficially entitled. A beneficiary named in the will does not automatically own or control the house at the date of death.

The exception is jointly owned land with a right of survivorship, which does not devolve to the personal representative. If the home was held that way, the question of who lives there may have little to do with the estate. Check the title and ask a lawyer how it was held.

A personal representative has the same authority over the estate as the deceased would have had if living, subject to any contrary intention in the will and to any enactment. They must use it to administer and distribute the estate and to account to the people they owe a duty to account to.

What an executor can reasonably require

The executor holds the land in trust and has authority to administer and distribute the estate, subject to the will and any enactment. Whether someone may stay in the home, and on what terms, depends on the will and the facts, so it is worth confirming with a lawyer. Many executors allow a family member to remain for a period if the arrangement is clear. Common points to settle in writing include:

• How long the person may stay and what happens if the sale is ready to proceed
• Who pays utilities, upkeep, property taxes and insurance, and whether any of that is later adjusted against the person's share
• Access for the executor, appraisers, real estate agents and buyers
• Keeping the home in good condition and not moving belongings or fixtures out
• Whether anyone else may live there

If a trust for sale or power of sale is vested in a trustee, the trustee may sell on the conditions the trustee thinks fit, unless the trust instrument shows a contrary intention. A beneficiary generally cannot challenge a sale on the ground that its conditions were unnecessarily depreciatory, unless those conditions made the price inadequate. How a beneficiary living in the house affects a particular sale depends on the will and the facts, so it is worth confirming with a lawyer.

Costs, insurance and the sale

An occupied house still has carrying costs. Mortgage payments, property taxes, utilities and repairs do not stop at death. Who pays them, and whether the occupant's share of the estate is later reduced to reflect rent-free use, depends on the will and any agreement made. Keep receipts, because the executor must be able to account for the estate's money.

Insurance deserves early attention. Home insurance policies often have conditions about who owns and occupies the home, and about how long it can sit vacant. Ask the insurer, in writing, what coverage applies now that the owner has died and who lives there. Do not assume the existing policy continues unchanged. Contact the insurer before anyone moves in or out.

Moving the sale along also affects timing for everyone else. Unless the court orders otherwise, the estate generally cannot be distributed within 210 days after the grant is issued, although there are exceptions where all required people consent. How that period fits with the timing of listing or selling the house depends on your situation, so it is worth confirming with a lawyer.

When there is disagreement

The court may remove a representative who is unable, unresponsive or unwilling to act to the extent it hampers administration. These steps are usually a last resort after discussion has failed, and a lawyer can help weigh whether they fit your situation.

What to do next

• Find out how the home was owned and what the will says about it.
• If you are living there, ask the executor for the terms in writing before assuming you can stay.
• If you are the executor, put the occupancy terms, costs and end date in a written agreement.
• Confirm the insurance position with the insurer in writing.
• Keep records of all payments and repairs, since accounts may later be reviewed.
• Speak with a lawyer if the arrangement is disputed or the sale is being delayed.

Frequently asked questions