For some reason, people choose to believe that because they were related to someone who passes away, they are entitled to take something that the person owned. The fact that the items now belong to the person's heirs seems not to matter, except, of course, to the heirs. Recently a reader sent me a note about this situation, and the question and my answer appear below:
"My father passed March of 2013, my 2 brothers and myself are the beneficiaries with his sister getting a lump sum from the estate. My question is are the contents of his home part of the estate or can my uncle (the executor) do with his belongings as he pleases, e.g.: my Aunt and Uncle's children going to the home and taking things they want as memories of my Dad? It has been so soon since his passing and I thought nothing was to be touched until probate is done."
The personal and household goods in the house are definitely part of the estate. And no, the executor cannot do as he pleases with them, if that means giving them to people who are not beneficiaries.
The wording of the will is the first place you should look for guidance as to what the executor is allowed to do. Sometimes people will 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. The will might make reference to a Memorandum (or list) that gives specific items to specific people.
If your father's will doesn't say anything specific about personal and household goods, then those items belong to the residue of the estate. The residue contains every single bit of the estate after expenses and taxes are paid and the sum of money to your aunt is paid out. From what you've said here, it appears that you and your brothers are the beneficiaries of the residue of the estate.
This means that the items that are being taken in memory of your Dad belong to you and your brothers.
The executor does NOT have the legal right to change what's in the will to suit himself or his children. He does NOT have the right to give away items from the estate to people who are not beneficiaries. Your uncle's children are not beneficiaries based on what you've told me. Your aunt is a beneficiary, but not of personal items. She is entitled only to the lump sum of money, and not to any household or personal items.
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 that it followed the terms of the will.
It's not at all unusual that people think they can help themselves to household goods. Executors are usually required to change the locks on a deceased's home just to prevent this kind of illegal looting. But in your case it's the executor himself who is allowing it, so you're in a bit of a difficult situation.
Your legal position is that if you don't get what you're supposed to get under the will (which includes those personal items) then the executor is personally responsible for the loss to you. If he would like to pay you and your brothers for the items that were taken (from his own pocket, not from the estate), you may choose to accept that. Otherwise, you may choose to enforce your legal rights in another way.
At this point, you and your brothers have to decide how far you want to take this. You can start off by talking to the executor, but many executors are pretty darn hard to convince that they're out of line, so think about whether you want to push it using the courts.
You are going to have to make your position clear to the executor. If you talk to him about it, make sure you confirm in writing your demand - you'll notice it's a demand, not a request - to replace the items or cough up the value from his own pocket. You can hire a lawyer to do this if it appears you aren't getting a good response. Do not use the estate lawyer (if there is one) because that lawyer works for the executor and not for you. Alternatively, your demand could be for the return of the items, which after all belong to you. It could be that the executor really doesn't realize he isn't allowed to take these items, or that he isn't allowed to let family members take them. If that's the case, he shouldn't mind rectifying the mistake.
Assuming that the executor refuses to co-operate, you may choose to wait until the estate is being wound up, then force an accounting through the courts. This could result in the executor being forced to give up part of his compensation in exchange for the taken items, or being forced to repay money, etc. However, that approach has the downside of not putting a stop to the theft of the items and the risk is that you may not get the items back.
You have options. Talk with your brothers and make a decision as a group, if you can. But make no mistake, the executor is allowing people to take things that belong to you.