Executor Duties for a House and Vacant Property in Ontario

When someone dies and leaves an empty house, the executor often becomes responsible for it overnight. Heat, insurance, security and the lawn do not stop just because the owner has passed away.

This article covers how the law treats the house, what you can pay for, and when a sale needs other people's approval. Details differ between estates, so a lawyer can confirm your own position.

Is the house part of the estate?

The deceased's property, other than property passing by survivorship, vests in the personal representative as trustee, subject to payment of the deceased's debts. Property held with a right of survivorship, such as a home held as joint tenants, does not vest in the personal representative. It passes to the survivor and does not form part of the estate you sell.

If the deceased owned real property, the estate normally must be probated, although Ontario's official page also says probate is not always required to administer an estate. Confirm how the home was owned before you plan anything.

Insurance, utilities and upkeep

Ontario law lets an estate trustee who believes an expense is properly incurred in carrying out the trust pay it from estate property, or pay it personally and recover it from the estate. Examples include a funeral paid personally, and insurance or utilities on a vacant house. The court may later disallow the payment or recovery.

No Ontario statute sets insurance requirements for a vacant home, so what your insurer requires depends on its own policy. Call the insurer promptly, tell them the owner has died and the home is empty, and ask in writing what coverage applies.

• Keep the heat on enough to protect pipes in winter, and keep other utilities active as needed.
• Secure the doors and windows, and check the property regularly.
• Forward the mail and remove valuables that are easy to take.
• Keep every receipt for what you pay.

Selling the house and who must agree

The personal representative may sell real property to pay debts and also to distribute or divide the estate. A sale made only to distribute the estate needs the approval of the majority of the persons beneficially entitled. For minors, the Children's Lawyer gives approval, and for mentally incapable persons, the Public Guardian and Trustee does. A judge may dispense with the beneficiaries' concurrence.

If you are an executor who wants to buy the house yourself, this approval step is the part of the process to look at closely. How it applies to you depends on the facts of your estate, so it is worth confirming with a lawyer before you go ahead.

Real property not conveyed or distributed within three years of death vests in the beneficiaries, unless the personal representative registers a caution, which delays vesting for three years from its registration. A person who buys in good faith and for value from a personal representative, in an authorized manner, takes the property free of the deceased's debts, subject to stated exceptions.

Records and fairness

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. Every insurance bill, utility payment and repair for the house belongs in those records.

If something goes wrong, the court may relieve a trustee of personal liability for a breach of trust if they acted honestly and reasonably and ought fairly to be excused. Good records and prompt, sensible decisions help show that.

What to do next

• Confirm how title is held and whether the house is part of the estate.
• Notify the insurer and ask about vacant-home coverage in writing.
• Secure the property and keep utilities running as needed.
• Track every expense and keep receipts.
• Speak with the beneficiaries before listing or selling the house.
• Get legal advice before you buy the house yourself or if beneficiaries disagree.

Frequently asked questions