Key Takeaways
- Yes, you can live in a house during probate, but only under specific criteria and conditions.
- The executor is responsible for managing a property and will maintain discretion over whether someone can live in a home during probate.
- Other avenues to remain in a house during probate include when the person living in the home was a joint owner of the property, if a spouse files a spousal property petition, or if a beneficiary is set to inherit the home.
- Disputes around property may be resolved by either selling the property or facilitating a mediation process between the parties involved in the dispute.
Introduction
Yes, you can live in a home during probate under select circumstances. However, this is not always the case. To be able to live in the home, you must have the permission of either the estate executor or the probate court, based on state law.
Probate is a necessary process that occurs when someone dies with or without a will, and it is crucial for inventorying the assets of an estate and facilitating the transfer of property ownership to the identified beneficiaries. During probate, the executor is responsible for marshaling and inventorying all estate assets, preserving these assets, settling all estate debts and taxes, and distributing remaining assets to beneficiaries.
If someone was living in a home prior to the owner’s death, it may lead to confusion surrounding whether they have a right to remain living in the property, as the property is handled through probate. Having a detailed understanding of the probate process and the laws surrounding it, while engaging a skilled probate attorney, is crucial for determining whether someone can or should reside in a home.
How Does Probate Affect Real Estate?
Probate is the process of handling the final affairs of someone who has passed away, . This process includes marshaling and inventorying all estate assets, preserving the value of all estate property, paying estate taxes and debts, and distributing remaining assets to beneficiaries.
The executor is responsible for overseeing the property and all assets related to it. Anything included in the estate will be distributed pursuant to a will, if one exists. For example, if real estate was included and discussed in the decedent’s will, then real estate will be distributed to beneficiaries in alignment with the testator’s wishes.
The creator of the will may call for their property to be distributed in one of the following ways:
- Transfer ownership of the home to a single beneficiary
- Sell the home and distribute the sales proceeds to a single beneficiary
- Sell the home and distribute the sales proceeds to multiple beneficiaries
If there is no will, then the fate of their property will be decided through a process known as intestate succession. During this process, the estate will distribute assets to the legal heirs in accordance with state laws governing the line of succession. If there are multiple beneficiaries, the most common scenario is that the real estate will be sold and the proceeds will be distributed among them.
Can You Live in a House During Probate?
Yes, you may be able to live in a house during probate, but only under very specific circumstances. Ultimately, the executor has the authority to permit someone to live in a home during probate. If you do live in a house during probate, it’s often advisable to begin making alternative arrangements in case the home is sold or transferred to a different beneficiary. In which case, you will have to vacate the property upon the finalization of the estate.
There are a few common circumstances where an individual may end up living in a home during the probate process:
- If the decedent listed the resident of the home as a beneficiary in their will or they are the sole heir through intestate succession
- If a house is left to the decedent’s children and one of the siblings lives in the house until the home is distributed
- The individual had joint ownership of the property with the decedent prior to their death
- Beneficiaries of the estate agree to allow an individual to remain in a home until the probate process is completed
- A surviving spouse may be able to file for a spousal property petition, which would allow them to legally request and receive ownership of the property without a full formal probate.
This dilemma is common when an individual, such as the decedent’s child, lived in the house prior to probate and wants to maintain their residence as long as possible, especially if they do not have other plans. Still, every case is different, so it’s important to do your research and consult a skilled probate attorney in advance of the process so that you understand your rights in your unique situation.
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Role of the Estate Executor or Administrator With Real Estate
When the head of an estate dies, the executor or administrator of the estate, also known as the estate’s personal representative, becomes responsible for managing all estate property and assets. In the case of real estate, the executor’s responsibilities include maintaining the well-being of the property, managing expenses related to the property, and making decisions about its sale or transfer. However, if someone else is living in the property during probate, they will be the one responsible for maintaining its well-being and paying these costs.
The personal representative of an estate will also play an important role if there are disputes between heirs or beneficiaries surrounding a property in probate or someone living in the property. The estate representative may bring the interested parties to the table in a mediation session to discuss a potential buyout agreement or engage the support of a probate litigation lawyer to help resolve the dispute.
What Happens if You Want to Sell the Property?
If you want to sell the property, you will need to be sure that this process happens within the terms and requirements set by probate law. The sale of the property can only be facilitated by the estate personal representative under select circumstances.
The executor typically has the authority to sell property under two key circumstances—the first is if the estate planning documents call for the sale of the property to be distributed. The second common scenario is when there is no will left. However, in some instances, an executor may petition the court and receive permission from beneficiaries if it is necessary to resolve an inheritance dispute or is in the best interests of the estate.
To sell a probate property, the executor will need to follow these steps:
- Determine whether you have Full Authority or Limited Authority under the California Independent Administration of Estate Act
- If you have Full Authority, you may reach out a reator to assist you in the sale
- If you have Limited Authority, you will need to petition the court to approve the sale at a probate auction
- Notify all beneficiaries and heirs of the proposed sale
When a decision is made to sell the property, any individuals living in the property must find a new place to live. If the executor must sell the property and an individual refuses to leave, the executor may be forced to file eviction proceedings with the local court.
Options for Resolving Ownership Issues
If ownership issues result surrounding who should receive ownership of a property after a decedent dies, there are multiple avenues for resolving them. These avenues can range from less disruptive mediation to more invasive litigation.
The following are some of the most common options for resolving ownership issues:
- Partition Action – A partition action involves selling the property and dividing the proceeds fairly to each of the coowners, often when an alternate agreement cannot be reached.
- Mediation – Mediation may be able to yield an agreement that brings about a resolution to the dispute, such as selling the property or a buyout agreement where one party agrees to purchase another party’s share in exchange for full ownership of the property.
- Will Contest – If the ownership dispute stems from difficulty interpreting the will or a dispute, a will contest may be able to clarify which beneficiary has a right to the estate property.
- Litigation – If one party believes they have a right to ownership of the property and mediation does not work, they may decide to build a case with evidence for their right to ownership through the courts.
In any case, if disputes over the ownership of a home occur, it’s advisable to consult a probate lawyer as soon as possible. An attorney may be able to offer support through mediating and resolving disputes by ensuring both sides are carefully and respectfully considered and heard. Starting conversations as early as possible is important for maximizing the chances of finding an agreement that satisfies all parties.
Practical Considerations for Living in a Probate Property
If a person lives in a probate property, they should be aware of the risk and responsibility that comes with this. Typically, the management of property during probate is the responsibility of the estate’s personal representative. However, the executor may ask the person living in the property to assume this responsibility—in this case, they would be responsible for paying utilities, mortgage payments, property taxes, and maintenance costs.
Living in a probate property may also open up the individual to legal risks if their actions result in financial losses to the estate. For example, if they damage or neglect the property to the point that it falls below its appraised value, they may be held liable for financial costs.
Meanwhile, the ability to continue living in a house during probate may provide someone with more time to make alternative living arrangements. That said, the probate process is not always cut-and-dry with a clear end date, and it can range anywhere from six months to a few years. As a result, the uncertainty around the timeline provides the person living in the home with a significant level of instability in their living situation.
Preventing Future Issues with Proper Estate Planning
Developing a clear and comprehensive estate plan can prevent questions or ambiguities about how a property should be handled after one’s death. Strategies like establishing joint tenancy and having a clearly written will can simplify the probate process for real estate and who should live in the property.
For example, if the owner of the property wants to leave it to a specific beneficiary, then they should consider establishing joint ownership with that individual or placing the property into a trust. These options would allow the property to bypass the probate process entirely as the surviving owner would assume legal control of the property without dispute.
Meanwhile, having a clear will ensures that there are clear instructions for how assets should be distributed after one’s death can prevent ambiguity. The will can identify beneficiaries for a property, clarify how long someone can live in the house, and explain how ownership should be transferred. So that all beneficiaries have a clear understanding of how everyone should proceed.
Consider discussing your estate plans with an estate planning attorney to ensure your plan covers all the important details around your property. After you have drafted your will, a probate attorney may also be able to review your estate plan to find any holes and offer any additional factors you should consider.
Get Guidance on Navigating Probate and Real Estate Matters With RMO
A beneficiary may be able to live in a home during probate if it is allowed by the executor or the courts through a legal avenue, such as a spousal property petition. However, there are several scenarios that may impact whether or not a person can continue to live in a home during the probate process.
Whether you are an executor or beneficiary, the team of probate estate administration attorneys at RMO Lawyers can support you in understanding how estate assets should be handled. If a dispute arises surrounding how to manage property during probate, the probate litigation attorneys at RMO may be able to help by developing a winning strategy in pursuit of a quick resolution to your case.
Schedule a consultation with the team at RMO Lawyers to start discussing your case.
Glossary
Beneficiary – A beneficiary is an individual or entity identified in a trust or will as being entitled to receive benefits from the estate.
Executor – An individual appointed by a probate court who is responsible for managing and administering an estate and is named as executor in the deceased’s will.
Estate administrator – An individual appointed by a probate court to manage and administer an estate when there is no will naming an executor, the named executor is deceased or otherwise cannot serve, including because they are disqualified or were suspended or removed.
Heir – An individual who is entitled to receive a share of assets in the event of the settlor’s death based on state intestacy laws.
Probate — the court process in which the assets of an estate are gathered, accounted for, and distributed to the heirs or beneficiaries after an individual passes away, either in accordance with the deceased’s wishes if they had a will or following local intestacy laws if there was no will.
Partition action – A partition action is a legal proceeding that allows a beneficiary of a property to pursue a court order to sell an inherited property or divide it into separate parcels for each owner.
Intestate succession – The legal process for guiding the distribution of assets to legal heirs based on state intestacy law when someone passes away without leaving a will.
Spousal property petition – A legal request to the probate court to transfer a deceased spouse’s property to the surviving spouse without formal probate, typically available when assets pass directly to the surviving spouse under state law.