Executor Taking Items From the House Before Probate in Ontario

You walk into your late relative's home and notice that the executor is carrying out furniture, jewellery or boxes. Probate has not been granted yet, and nobody has told you what is being taken or why. It can feel like the estate is being emptied before anyone has a chance to look.

Some removal is ordinary and sensible, such as securing valuables or clearing perishables. Other removal can be self-dealing, meaning the executor benefits personally at the estate's expense. This article explains the framework and how to document what you see. How it applies to your family depends on the will and the facts.

What an executor is supposed to be doing

The estate trustee's job is to wind up the deceased's affairs, pay taxes, bills and debts, collect the assets, and distribute the residue to those entitled. A person named as estate trustee is not required to act. Once someone takes on the role, the deceased's property vests in the personal representative as trustee for the persons beneficially entitled, subject to payment of debts.

So the guiding idea is simple. Items in the house are held for the estate and the people entitled to it. Moving things to safety, storing them, or inventorying them fits that role. Taking things for personal use or keeping them as a gift to oneself, without the will or the other beneficiaries supporting it, does not.

Before probate: what is generally reasonable

Ontario says probate is not always required, but if the deceased owned real property or assets held by a financial institution the estate normally has to be probated. The named estate trustee typically applies for the certificate. How this applies in the period before a certificate is issued depends on your situation, so it is worth confirming with a lawyer.

Ontario's own executor checklist begins with practical steps such as filing the deceased's income tax return, informing banks and financial institutions of the death, and checking whether a will exists. None of those steps involves dividing up household contents. What is reasonable in the gap is usually careful, temporary, and recorded.

Self-dealing and where the law steps in

Self-dealing means the executor benefits personally in a way that conflicts with the duty to the estate. The statutes in play do not use that label, but they supply tools. An executor, administrator or trustee can be required to account. An executor need not render an account other than by inventory unless asked by or for a person interested in the property or by a creditor.

On a passing of accounts, the judge may make full inquiry into and accounting of the whole property of the deceased and its administration. The judge may also inquire into and determine complaints of misconduct, neglect or default by an executor causing loss to the estate, and may order payment of damages or other relief. A court may also excuse a trustee who committed a breach of trust if the trustee acted honestly and reasonably and ought fairly to be excused. That is why the executor's reasons and records matter.

If the will fixes the executor's pay, or says the executor acts without pay, the will governs the compensation. Whether the will also gives the executor particular items depends on its wording. Reading the will carefully before raising an alarm can save a lot of conflict.

Why the value of what is taken matters

A sworn statement of the value of the deceased's property is required before a grant, and property discovered later must be reported in a sworn statement within six months of discovery. Estate administration tax is based on value as of the date of death and is paid when the application is filed. Assets owned at death, such as bank accounts, vehicles and business interests, count toward the estate value.

If items are removed and not counted, the estate's reported value can be wrong. An Estate Information Return may need to be amended within 60 days of becoming aware of incorrect or incomplete information. Failing to file, or making false or misleading statements, carries a fine of at least $1,000 and up to twice the tax payable, up to two years' imprisonment, or both. An accurate inventory protects the executor as well as the beneficiaries.

What to do next

• Photograph or video what you see, with dates, without removing anything yourself.
• Write down who took what, when, and what reason was given.
• Send a written request for an inventory of the contents and an account of what has been removed.
• Ask whether the will says anything about specific items or personal belongings.
• If a power of attorney was used for the deceased, remember it ended at death, and note any activity after that date.
• Keep messages and emails, and avoid confrontations at the house.
• Speak with an Ontario estates lawyer if answers are not provided or valuable items are missing.

Frequently asked questions