Dividing Personal Belongings and Sentimental Items as Executor

A parent's home is full of things with little money value and a great deal of meaning: a ring, a painting, a set of dishes, a hockey jersey. When the will does not say who gets what, two or three children can easily want the same item, and disagreements over keepsakes often hurt families more than disagreements over money.

This article explains, in general terms, how an executor can approach the task fairly, what to do before anything leaves the house, and when it makes sense to get a valuation or legal advice. It is general information, not advice on your family's situation.

What the executor is responsible for

An estate trustee (the legal term for an executor) carries out the terms of the will and administers the estate under the law. That means winding up the deceased's affairs, collecting the assets, paying taxes, bills and other debts, and distributing the residue to those entitled to it. A person named in a will is not required to act.

The estate value that must be reported includes the personal property the deceased owned at death. Exactly how that works for particular belongings depends on the wording of the will, so it is worth having a lawyer read it if there is any doubt.

Distribution under a will follows the sale of assets and the payment of funeral and burial expenses and any debts. In practice, that is a reason not to hand out the contents of the house too quickly. A surviving spouse also has a six-month window to choose an equalization payment instead of the will, and the Land Registration bulletin says no distribution of the estate should be made within six months of death unless the spouse consents in writing or the court authorizes it. If there is a surviving spouse, get advice before anything is given away.

Before anyone takes anything

The early weeks set the tone. Most keepsake disputes grow from one person quietly removing items before others had a chance to see them. A few simple habits protect both the family and the executor.

• Secure the home and agree who has keys, so nothing disappears and no one is accused of taking things.
• Photograph every room and valuable item, and keep a dated list of what was there.
• Ask whether the deceased left any note, list or email saying who should have particular items, and keep a copy even if it is not legally binding.
• Tell all beneficiaries what you plan to do and give everyone the same chance to see the items.
• Do not give away, sell or throw out anything of possible value until you have talked to the other beneficiaries.

If the deceased was a tenant, timing matters. Where there are no other tenants, the tenancy ends 30 days after the death unless the landlord and the estate's representative agree otherwise. During that period the landlord must leave the property in the unit, apart from items that are unsafe or unhygienic, and give the representative reasonable access to remove it. After 30 days the landlord may sell, keep or dispose of the property, although the estate can claim the property or the sale proceeds, less rent and the landlord's out-of-pocket expenses, for up to 6 months after the death. Rules in this area have been changing, so confirm the current rules before relying on these periods.

Fair ways to divide sentimental items

There is no single required method for dividing keepsakes. What matters is that the process is transparent and that every beneficiary agrees to it before it starts. These are the approaches families commonly use.

Whatever method is chosen, write it down, have everyone confirm it by email or signature, and keep a record of who received what. Whether a kept item should count toward that person's share depends on the will and the family's agreement, so settle that point before the draft begins, not afterward.

When to get a valuation

Not every item needs an appraisal. A professional valuation makes sense for jewellery, art, antiques, collections, firearms, vehicles and anything else that could be worth meaningful money, or where beneficiaries disagree about its worth.

• Fairness: If one child takes a valuable painting and another takes a box of dishes, a valuation lets you balance the shares.
• Reporting: Estate Administration Tax is charged on the value of the estate as of the date of death, and the return must report the total value of personal property owned at death. The return lists assets with their values.
• Income tax: Capital property is treated as disposed of just before death at fair market value, reported on the final return. A later sale is taxed on the sale price less the fair market value reported on the final return.
• Disputes: An independent figure is much harder to argue with than a family member's guess.

Whether a particular item counts as capital property, and how it should be reported, is a question for an accountant. Estate Administration Tax above $50,000 is $15 for every $1,000 or part of estate value, so values reported affect the tax payable.

When family cannot agree

Sometimes one person says the item was a gift made before death. The general rule for gratuitous transfers is a presumption of resulting trust, meaning the person who received it has to show that a gift was intended, judged at the time of the transfer. Whether that applies to a particular object depends on the facts, so get advice before taking a firm position.

If discussion fails, mediation can help. An estate trustee may also apply to pass accounts. The trustee files accounts verified by affidavit, the court issues a Notice of Application to Pass Accounts, and it is served on people with a vested or contingent interest. Interested persons may serve a notice of objection. Court fees listed by Ontario are $432 for the application to pass accounts and $93 for a notice of objection. Court should be a last step, since costs can easily outweigh the value of the items.

What to do next

• Read the will for any clause about personal effects, and ask a lawyer if the wording is unclear.
• Make a photo inventory and share it with every beneficiary.
• Propose a division method in writing and get agreement before anyone picks.
• Order valuations for higher-value items and keep the reports with the estate records.
• Keep a signed list of who received which items, and keep estate records, since the Ministry expects supporting records for the Estate Information Return to be kept for four years.
• Talk to a lawyer early if a spouse, a minor beneficiary or a serious disagreement is involved.

Frequently asked questions