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. Many wills instruct the executor to divide household and personal belongings equally among certain beneficiaries. Some wills include specific instructions about certain belongings, or refer to a memo or list that gives specific items to specific people. 

It’s also possible for a will-maker to give such a memo or letter to the executor and it not be referred to in the will.

If your father didn’t leave instructions in his will or a letter to the executor about the car or household belongings, 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.

How the law treats household and personal belongings

Here’s the thing about household and personal belongings left behind after someone passes away. The law isn’t really too concerned about used furniture or clothing, for example, unless they have some special value. If a few modest pieces are given away, the law is unlikely to intervene.

A car, on the other hand, is an asset that's likely to have marketable value.

The executor’s duties 

Either way, the executor should keep in mind their duties under the law. An executor is subject to what is known as the even-hand rule. Executors are required to treat all the beneficiaries equally, unless the will says differently. So even when distributing some relatively worthless articles of clothing or used furniture, they should first of all only be distributed to beneficiaries, and secondly the executor should be even-handed about it and offer these things to all the beneficiaries.

The executor also has a duty to preserve and protect the estate assets, and to realize their value. 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.)

The bottom line is the executor does not have the right to give away items from the residue of the estate to people who are not beneficiaries. But if only one or two items of no special value are involved, and they're offered to all beneficiaries, then that’s less likely to attract concern.

Kevin Smith

Kevin Smith

Retired lawyer and consultant
  • Reviewed in April 2021
  • This information applies to British Columbia, Canada

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