Can the executor of a will use or give away the deceased's property?

My dad passed away. His will named my brother as the executor. I'm a beneficiary. My brother hasn't told us the details of how the estate will be divided up, but he's started giving away some of dad's furniture to other relatives, and he's driving dad's car. Is that allowed?

Danny

Danny

Williams Lake, BC

The wording of the will is the first place to look for guidance as to what the executor is allowed to do. Sometimes people put specific instructions about personal items in the will. For example, the will might say that personal belongings are supposed to be divided among certain people. Or the will might refer to a memo or list that gives specific items to specific people.

If your father's will doesn't say anything specific about personal belongings or furniture, then those items belong to the residue of the estate. The residue is whatever is left over in an estate after the executor pays all the expenses, taxes, and debts, and distributes any specific gifts. The residue is distributed to whoever is named in the will as a residual beneficiary. It sounds like you might be one here.

To be clear: the executor does not have the right to give away items from the estate to people who are not beneficiaries.

Distribution of personal items often takes place before probate is granted, as long as it's clear who is to get what, and there is no dispute. The executor would oversee this process to ensure it follows the terms of the will.

Until the estate is distributed, the executor has a duty to preserve and protect the estate assets. This includes ensuring the assets remain in relatively the same condition as they were on the date of death (for example, no additional miles on the deceased's vehicles, and no additional wear and tear on the deceased’s home or other property). An exception to this might be where a spouse continues to live in the matrimonial home, or where a tenant continues to rent in an investment property of the deceased for which there is a valid tenancy agreement.

People's team

People's team

People's Law School
  • Reviewed in October 2017
  • This information applies to British Columbia, Canada

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