Can an Executor Live in or Rent Out a Deceased's Home in British Columbia?

When someone dies, their home is often the largest asset and the most awkward one. It may sit empty, a family member may already be living there, or an executor may wonder whether renting it out would help cover the carrying costs.

In British Columbia, what you may do with the house depends on who has legal authority, what the will says and who will eventually receive the property. This article explains the general rules so you can ask better questions before you move in, hand over keys or sign a lease.

This article covers the law of British Columbia.

Who has authority over the house

A deceased person's estate vests in the personal representative once the personal representative takes office or is appointed. Until then, it vests in the court if there is no executor or no will. A grant of probate or administration then gives the personal representative exclusive authority to administer the estate.

The personal representative has the same authority over the estate as the deceased would have had, but this is subject to the will and to other laws. Land passes to the personal representative in the same way as other property, and they hold it as trustee for the beneficiaries. That last point shapes most of the answers below. In other words, the representative holds the house as trustee for the beneficiaries.

Can an executor or family member live in the home?

There is no simple yes or no. Because the representative holds the land as trustee for the beneficiaries, living in it affects everyone who will share in the estate. If the will gives the house to you, or lets you stay, that is a good starting point. Even so, the representative still holds the land as trustee, and the estate generally cannot be distributed within 210 days after the grant is issued unless the court orders otherwise. Early distribution is possible where there is a will and all beneficiaries with an interest and everyone who could bring a wills-variation claim consent. Where there is no will, it is possible if all intestate successors entitled to a share consent.

If the house is going to someone else, or will be sold and divided, staying there rent-free can lead to disagreement. A beneficiary who is unhappy can apply to the court, and the court may remove a personal representative on listed grounds, including being unable or unwilling to carry out duties to the point of hampering administration. Whether any particular arrangement crosses that line depends on the facts.

• Check what the will says about the house, and about anyone allowed to stay in it.
• Talk to every beneficiary before anyone moves in, and get any agreement in writing.
• Keep paying the property taxes, utilities and insurance, and keep records of who paid what.
• If there is real disagreement, ask a lawyer whether to seek the court's direction.

Can an executor rent the house out?

A personal representative has the deceased's authority over the estate, subject to the will and other laws. Whether that includes renting the home out for a period depends on the will, on what the beneficiaries want and on how long the estate will take to settle. Who is entitled to any rent depends on the will and the facts, so keep it separate, record it carefully and confirm the position with a lawyer.

If you are not sure whether renting is appropriate, an executor, administrator or trustee may petition the court for its opinion, advice or direction on a question about managing the estate, without starting any other proceeding. That can be a sensible route when beneficiaries disagree about what to do with the property.

Co-executors, selling and waiting periods

If there are several personal representatives, a disposition of land by only one or some of them is not valid without court approval. There is an exception where some co-executors renounce or do not join the probate application: the executors who obtained probate may then act as if all had acted, including for land.

Also remember that a personal representative must not distribute the estate within 210 days after the grant is issued, unless the court orders otherwise. There are exceptions, such as when all beneficiaries with an interest and everyone who could bring a wills-variation claim consent. So a house usually stays in the estate for some time, and decisions about it are made in the meantime.

Insurance and vacancy

Home insurance is a matter of the policy wording, not a single legal rule. Many policies place conditions on how long a home may be unoccupied, or on who lives there, and an insurer may treat a death, a tenant or an empty house as a change that must be reported. Contact the insurer or broker soon after the death, tell them who is responsible for the property and ask in writing what coverage applies while the home is vacant, occupied by a family member or rented.

Ask the same questions before any tenant moves in. A policy for an owner-occupied home may not suit a rental, and a gap in coverage is a risk that a trustee for the beneficiaries would not want to carry. A lawyer or insurance broker can confirm what your own policy requires.

What to do next

• Find the will and confirm who is named as executor.
• Secure the house: locks, mail, heat and regular visits.
• Call the insurer and ask in writing about vacancy, occupancy and tenants.
• Before you move in, rent out or hand over the house, confirm your authority and talk with the beneficiaries. How this applies depends on your situation, so it is worth confirming with a lawyer.
• Keep a record of every expense and any rent or other money received.
• Speak with a lawyer if beneficiaries disagree, or if you are unsure whether you hold a grant yet.

Frequently asked questions