Dividing Heirlooms and Contents of a Parent's House in Ontario

A parent has died, the house is full of furniture, jewellery, photographs and the things that carried memories, and the siblings do not agree on who should take what. Items that are worth little in money can matter the most, and disagreements over them can damage relationships that the family wants to keep.

This article explains who has authority over the contents, a fair process that many families use, and the legal points that can affect the house and its belongings. How much discretion an estate trustee has over personal items depends on the will and the facts, so a lawyer can confirm your situation.

Who decides what happens to the contents

The person who winds up the estate is the estate trustee. The role includes collecting the deceased's assets, paying taxes and debts, and distributing the residue to those entitled. Furniture, jewellery and keepsakes are part of what the trustee must account for and deal with.

If there is a will, the will names the trustee and may say who gets particular items or how the rest should be shared. Read it closely before anyone removes anything. How much choice the trustee has when the will is silent about personal items depends on the wording and the facts, and is worth confirming with a lawyer.

If there is no will, the spouse or common-law partner usually has first right to apply to administer the estate. If there is no spouse or partner, a child, parent, grandchild, sibling, nephew or niece can apply, and the court may appoint the relative it considers most appropriate. A common-law spouse does not inherit under the Succession Law Reform Act, which surprises many families. If no eligible person can act, the Office of the Public Guardian and Trustee may apply, including where the deceased owned Ontario real estate.

A fair process for dividing belongings

Families often get into trouble because someone quietly takes items early. A calm, open process protects everyone, including the trustee, who has to answer for the assets.

• Secure the house and agree that nothing leaves until a list exists.
• Check the will for gifts of specific items before anything else.
• Photograph each room and make a written list of significant items.
• Get an appraisal for jewellery, art or collections that may be valuable.
• Let each beneficiary name the few items they care about most, and look for items where only one person has asked.
• For items several people want, take turns choosing, or draw lots, and keep a record of each pick.
• Keep a written record of what each person took and have everyone sign it.
• Donate or sell what nobody wants, and share any proceeds as the will or the law directs.

If valuable items go to some siblings and not others, the family may want to adjust the shares so the overall result is fair. A lawyer can help record that properly.

Legal points that can affect the house and its contents

Some situations change what you can do with the belongings. The table below sets out common ones.

When siblings cannot agree

Start by slowing down. Ask a neutral person, such as a trusted relative or a mediator, to help. If the dispute involves the will, who should act as trustee, or whether the trustee is following the will, get legal advice early, because delays and removals can create bigger problems than the items themselves.

The house is a different matter from its contents. Co-owners can be compelled to partition or sell land under the Partition Act, but where land passed by will or intestacy, no proceeding may start until one year after the death of the person in whom the land was vested. The Court of Appeal has said joint tenants have a prima facie right to force a sale, with the onus on the party resisting. A court may refuse only where the party seeking the sale is acting in a malicious, vexatious or oppressive fashion. These rules concern land, not furniture or jewellery.

What to do next

• Find the will and any list of gifts, and confirm who the estate trustee is.
• Ask everyone to leave the contents in place until the list is complete.
• If your parent rented, check the 30-day date and arrange access with the landlord right away.
• Keep photographs, lists and signed records in one folder.
• Speak with a lawyer if there is no will, if someone has already removed items, or if the family cannot agree.

Frequently asked questions