Dividing Personal Belongings: Executor Duties and Family Fights in Ontario

Money is usually easy to divide. A mother's ring, a father's tools or the dining table that held every holiday is not. Disagreements over personal belongings are among the most painful parts of an estate, and they can turn a grieving family against each other.

As executor, you are expected to deal with these items carefully and fairly. This article explains the general approach in Ontario, the tools available when siblings disagree, and the points where a lawyer's help is worth having.

Check what the will says before anything moves

The will comes first. It may leave specific items to named people, give the contents of the home to a group, or say nothing at all about belongings. Read it closely, along with any separate list of wishes, and ask a lawyer if the wording is unclear. Whether a separate note carries legal weight depends on the facts, so it is worth confirming with a lawyer, though it can still help show what the person wanted.

Also work out what is actually in the estate. Property held with a right of survivorship does not vest in the personal representative and passes to the survivor. Other property of the deceased vests in the personal representative as trustee, subject to payment of the deceased's debts. So an item a family member says was a gift, or something a surviving joint owner already holds, may not be yours to divide.

Hold off giving items away until you know the debts. Ontario's official guidance is that the estate is distributed once assets have been liquidated and the funeral and burial expenses and any debts have been paid. How this applies to higher-value items depends on your situation, so it is worth confirming with a lawyer.

Secure, list and value the items

Before the family starts claiming things, protect them. Secure the home, limit who has keys and ask people not to take items on their own. Taking things early is a common source of mistrust.

• Photograph every room and valuable item before anything is moved
• Make a written inventory with a short description of each item
• Get appraisals for jewellery, art, collectibles or other higher-value items
• Set aside items that are specifically left to someone in the will
• Keep a record of who has what, and when

This is more than good manners. Estate trustees must keep accurate records of the estate's assets and transactions, and accounts filed with the court must include assets at the date of death, all money received and all liabilities. A clear inventory is your best protection if anyone later questions what happened.

If the deceased rented, the landlord must preserve the tenant's property, except unsafe or unhygienic items, until the tenancy ends and give the executor, administrator or a family member reasonable access to remove it. If there are no other tenants, the tenancy is deemed terminated 30 days after the death. Plan the clearing of the unit with that timing in mind.

Practical ways to divide fairly

When the will does not say who gets what, there is no single required method. Executors commonly use approaches that give everyone a voice and keep the process visible. Which approach suits your family depends on the estate and the relationships.

Whatever you choose, share information with all of the beneficiaries, and write down any agreement and have everyone sign it. How the will and your circumstances affect the way items should be shared depends on your situation, so it is worth confirming with a lawyer. As a general principle, an executor should not take estate items for themselves, or buy them, without the beneficiaries' informed consent or court approval. If you are also a beneficiary, be especially careful and consider getting legal advice.

When siblings or co-executors cannot agree

If beneficiaries or co-executors are deadlocked, the court can help. Any person who appears to have a financial interest in an estate may apply for directions, and the court may direct that an estate trustee during litigation be appointed and file security. This route is used for deadlocked co-executors or disputes that stall the estate.

Beneficiaries also have rights. A beneficiary is an interested person who can compel accounts, and a person with a financial interest may move for an order requiring the estate trustee to file a statement of the nature and value of the estate's assets or to pass accounts. If a beneficiary objects to the accounts, they must serve a Notice of Objection to Accounts (Form 74.45) at least 35 days before the hearing date.

If an executor has misused estate property, the judge on a passing of accounts may make full inquiry into the deceased's property and may order the executor to pay such sum by way of damages or otherwise as is just. The court may also remove a personal representative on any ground on which it may remove any other trustee, on application by a person interested in the estate.

An executor who acted honestly and reasonably may be wholly or partly relieved of personal liability for a breach of trust if they ought fairly to be excused. Where beneficiaries are children under 18, the Office of the Children's Lawyer may act on their behalf.

What to do next

• Read the will and note any gifts of specific items
• Secure the home and photograph the contents
• Build an inventory and arrange appraisals for valuable pieces
• Share the inventory with every beneficiary at the same time
• Agree on a method in writing, and keep signed records of who took what
• Speak to a lawyer early if tension is rising or an item is contested

Many disputes ease when beneficiaries feel informed and treated fairly. If yours does not, getting legal advice before positions harden can save the family time, money and relationships.

Frequently asked questions