How Executors Avoid Personal Liability. Lynne Butler

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      • eBay, Kijiji, and other auction or sale websites.

      • Classified ads.

      • Secondhand store.

      • Collector who gave you the valuation.

      • Word of mouth to friends, family, and neighbours.

      It is worth stating that some items will have no resale value at all, such as most used clothing and household linens. As executor, you are entitled to make the decision that some common items have no value, and to dispose of them by giving them to a charity or throwing them away.

      4. Calling on Experts

      Do everything you can to identify and valuate items properly. As discussed in the previous section, you should bring in the help you need to make sure that you are not going to make a costly error.

      It is not always possible to have someone come into the house, or for you to take the items in question to an expert. Not everyone has an antiques dealer and art gallery down the street. If you do not have the expertise you need close by, take good, clear photos of the items, write factual descriptions for them in terms of size, age, and condition, and find expertise online. You can send photos, together with your notes of the items to experts in almost any field. Using the Internet, the distance from you will not matter a great deal, though you should always bear in mind the cost of shipping the items if that becomes necessary for sale.

      This is particularly useful when you need to place a value on something like a hockey card collection or a collection of old wax LP records, or something else that is important to a niche market.

      5. Selling to Beneficiaries and to the Executor

      Beneficiaries are just as entitled as anyone else to buy items from the estate. If there are items that have not been left to specific beneficiaries and the executor has listed them for sale, there is no reason that one of the beneficiaries may not purchase the items for fair market value. The executor should, of course, keep all paperwork relating to the sale so that he or she can establish that the right price was charged, that funds were actually received, and that no favouritism was shown.

      When it comes to the executor buying estate assets, the situation is more complicated. An executor who wants to buy an asset from the estate is in a conflict of interest, as his or her desire to get the asset as cheaply as possible conflicts with his or her executor’s duty to get the best price possible for the item.

      Some wills provide guidance on this issue by stating that the executor may purchase assets from the estate. If this is present in the will that you are administering, you may buy property or items from the estate without court permission. You should be very careful when setting the sale price so that you do not risk being accused of shortchanging the estate. Keep the purchase transaction above board and as transparent as possible. Keeping the details secret or confusing will only cause speculation among beneficiaries about what you are hiding.

      If the will does not specifically allow you as executor to purchase assets from the estate, and the majority of wills do not, you should ask the court for permission to do so. This involves asking for approval not of the general idea of buying something from the estate, but of a specific purchase of a specific item at a specific price.

      Court permission is most often applicable when an executor wants to buy real estate, as opposed to household objects or vehicles, from the estate. If this is your situation, make sure that you can demonstrate to the court through evidence that you are paying a fair price. This would be done by getting independent appraisals (more than one is best) of the property.

      If you obtain court permission to purchase a property, the beneficiaries will not be able to complain later on that the deal was not fair. At the time you apply to the court for permission, any beneficiary who objects to you buying the asset should be given notice of your court application so that the objections can be heard and dealt with.

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