Reply To: a will in probate


The estate means the property left by the deceased person and it belongs legally to the executor. Any dealings are conducted with the executor in person, not with the estate itself – the estate is just some money and objects, so you deal with the person who owns them. That’s the executor. Obviously the executor must act as a trustee and deal with the estate in a way that is consistent with the wishes of the deceased and in the interests of the beneficiaries. But within those limits, the executor can do what they want with what is for the time being their property. If a house is to be sold so that its value can be shared out, the executor might take the view that it would be a good idea to earn some money for the beneficiaries by renting it out while it is on the market. So in principle I don’t see any legal obstacle to the property being rented out to someone.

The problem arises when the tenant is someone who stands to gain from the final distribution of the estate. You are then in Reg 9(1)(e) territory – the claimant is paying rent to a trustee of a trust of which the claimant is a beneficiary. You then need to consider whether it would have been more reasonable for the trustee to let them live rent-free, as a kind of down-payment, and whether the existence of the tenancy is therefore an abuse of the scheme.

If the tenant is not a beneficiary of the will, but is still closely connected to the trustee (like a son as in your case), the fact that the mother is executor of an estate is irrelevant but you still have all the normal considerations that come into play where landlord and tenant are related – is there really an intention to charge rent, is it commercial etc.

So in summary: yes the executor can rent out the property I would say; and the fact that there is a deceased person’s estate involved here is only directly relevant if the claimant is a beneficiary because this brings Reg 9(1)(e) into play.