Being a Beneficiary Does Not Necessarily Give You the Right to Live in the Estate's House

A surprisingly difficult problem can arise where a family member is living in the deceased's home. The person living in the home, often a child of the deceased, may also be a beneficiary of the estate. They may have lived there for years, perhaps even for most of their life. They may understandably regard the property as their home.

But does being a beneficiary give that person the right to remain in the property?

Usually, the answer is, No. But the starting point is to review the deceased's Will, the ownership of the property, the nature of the occupant's legal rights and the responsibilities imposed upon the executor.

A Beneficiary and an Owner Are Not the Same Thing

Being named as a beneficiary under a Will does not necessarily make that beneficiary the immediate owner of a particular estate asset. For example, a Will might direct the executor to sell the deceased's home and divide the residue of the estate equally among three children. One of those children may already be living in the house. That child has an interest in the estate. But that does not necessarily give the child an immediate and personal right to occupy the house, prevent its sale, exclude the executor from the property, or remain there indefinitely. The executor must administer the estate according to the Will and applicable Ontario law.

First Ask: Does the Occupant Have an Independent Right to Remain?

Before demanding that an occupant leave, the executor should determine exactly why that person is in possession. The analysis can be very different where the occupant:

1. is a tenant under a valid tenancy arrangement;
2. is already a registered owner of the property;
3. has a right to occupy the property been granted under the Will;
4. can advance claims of a beneficial or equitable interest in the property;
5. is a spouse who may have rights arising under Ontario family law;
6. has some other contractual or proprietary right to possession; or
7. is simply a family member whom the deceased permitted to live there.

The last situation can be particularly difficult.

A parent may have permitted an adult child to live in the family home for many years without rent and without any written agreement. After the parent's death, the adult child may believe that years of occupation give them a continuing right to remain. That conclusion does not necessarily follow. The person's legal status must be determined from the actual circumstances. Long occupation, by itself, should not be confused with ownership or a permanent right of possession.

The Executor Has Responsibilities to All Beneficiaries

An executor must represent the interests of all the beneficiaries, not just the one occupying the property. The executor is responsible for administering the estate as a whole. That can require the executor to:

• secure the property;
• maintain insurance – note: insurance companies do not like to insure vacant homes, so there is a benefit to the estate to have the home occupied. Be mindful of this;
• inspect and maintain it;
• determine its value;
• preserve estate assets;
• pay property taxes, insurance premiums and other carrying costs;
• obtain access for appraisers, contractors or real estate agents;
• sell the property where required or appropriate; and
• ultimately distribute the estate among the beneficiaries.

An occupant who refuses to provide access or refuses to leave can therefore create a significant estate administration problem.

There is also a fairness issue.

Suppose three children are equal beneficiaries of an estate, but one child occupies the estate home for several years without paying rent while the estate pays the taxes, insurance and other expenses.

The financial benefit being enjoyed by the occupying beneficiary may effectively be borne by the other beneficiaries. An executor cannot simply ignore that issue indefinitely.

What if the Will Requires the House to Be Sold?

The wording of the Will matters. If the Will directs the executor to sell the property and distribute the proceeds, an occupant generally cannot defeat the administration of the estate merely by refusing to leave. Even where the executor has discretion concerning the timing of a sale, that discretion must be exercised consistently with the executor's duties and the terms of the Will. A beneficiary's preference to remain in the property is relevant as a practical matter, but it does not necessarily override the executor's obligation to administer the estate.

The Three-Year Rule Requires Particular Attention

Ontario estates involving real property have an additional complication that should not be overlooked. Section 9 of the Estates Administration Act provides, subject to important qualifications, that estate real property which has not been disposed of, conveyed, divided or distributed within three years following the deceased's death may vest in the persons beneficially entitled to it.

That does not mean that a beneficiary who has been occupying the house for three years automatically acquires an exclusive right to live there. Nor should the three-year rule be treated as eliminating the executor's powers in every case. Section 10 of the Estates Administration Act expressly preserves rights possessed by an executor or trustee under a Will or the Trustee Act.

Nevertheless, where estate real property remains unresolved as the third anniversary of death approaches — or has already passed — the executor should specifically consider the vesting provisions of the Estates Administration Act and the state of title. Delay can make an already difficult problem considerably more complicated.

Can the Estate Charge the Beneficiary Occupation Rent?

Potentially.

Where one beneficiary has had the exclusive benefit of an estate property while other beneficiaries have effectively been deprived of its use or value, occupation rent may become an issue. It should not be assumed, however, that occupation rent automatically applies in every case. The circumstances matter, including the arrangements made by the deceased, the expectations of the parties, expenses paid by the occupant, the terms of the Will, demands made by the executor, and the extent to which the occupation has interfered with administration of the estate. An executor faced with a prolonged occupation should document the estate's carrying costs and the history of the occupant's use of the property.

What Can the Executor Do if the Beneficiary Refuses to Leave?

The executor should generally avoid simply treating the situation as an ordinary eviction. Instead, the first step is to determine the occupant's legal status and whether there is any genuine tenancy, ownership, contractual or other proprietary claim. Where no independent right of possession exists, the executor may make a formal demand for access and, where necessary, vacant possession.

The demand should establish a reasonable deadline and clearly explain what is required. If the beneficiary nevertheless refuses to cooperate, the executor may have to seek relief from the Ontario Superior Court of Justice. Depending upon the circumstances, the relief sought could include orders addressing:

• the executor's right to possession and control of the estate property;
• access to the property;
• vacant possession;
• the sale of the property;
• interference with the administration of the estate;
• occupation rent or reimbursement of carrying costs; and
• the costs of the proceeding.

The appropriate relief will depend upon the Will, title to the property and the nature of the occupant's asserted rights.

Executors Should Be Careful About "Self-Help"

Even where an executor believes an occupant has no right to remain, simply changing the locks and removing someone's belongings can create unnecessary legal problems. An executor should first establish the occupant's legal status and use the appropriate process to obtain possession. This is particularly important where the occupant alleges a tenancy, ownership interest, agreement with the deceased or other independent legal right.

Delay Can Harm the Estate

Allowing the situation to continue indefinitely is not necessarily the neutral option. While an estate property remains occupied:

• taxes continue;
• insurance premiums continue;
• utilities and maintenance expenses continue;
• repairs may be required;
• market conditions may change;
• other beneficiaries remain unable to receive their inheritance; and
• disputes within the family can become more entrenched.

An executor who permits one beneficiary to occupy a valuable estate asset for an extended period may eventually be required to explain why that arrangement was allowed to continue and whether the estate or other beneficiaries suffered financially as a result.

The Bottom Line

Being a beneficiary of an estate does not, by itself, give someone the right to occupy estate-owned property indefinitely. The critical questions are what the Will says, who owns the property, what legal right the occupant has to possession, and what the executor must do to properly administer the estate.

Where a beneficiary refuses to provide access or vacant possession, the executor should determine the beneficiary's legal status before taking action. If there is no independent right to remain and voluntary arrangements fail, court intervention may ultimately be required to allow the executor to complete the administration of the estate. Estate property cannot simply remain in limbo because one beneficiary does not want to leave.

Ian Keay