When a person dies other persons may be living in the decedent’s residence and/or other real properties owned by the decedent. This may include the decedent’s spouse, child, significant other, care giver, rent paying tenant or simply a friend. What happens when such persons assert that they are entitled to live at the decedent’s residence and refuse to leave when asked to do so by the person administering the decedent’s estate?

This scenario often creates an expensive and time consuming problem for the person administering the decedent’s estate because it usually entails going to court. The trustee administering the decedent’s trust, or the personal representative administering the probate estate, as relevant, is legally required to safeguard and to make productive the estate’s assets, and ultimately to carry out the terms of the decedent’s trust or will.

If the trustee, or personal representative, wrongly allows for persons living in the decedent’s residence to live rent free and/or to damage the premises then the trustee of personal representative has failed to carry out his or her legal duties. If so, the trustee, or personal representative, can be removed and can be penalized.

Sometimes, however, the occupants may have a legal right to remain in the decedent’s residence. A person may have legal rights to remain at the residence either because they were already lawful “tenants” when the decedent died or because they became lawful tenants afterwards. A person can become a tenant either formally, i.e., signing a lease agreement, or informally by oral agreement. Accepting rent from an occupant will create a periodic tenancy at will and give them occupancy rights that will make removing them later more difficult. Tenancies can also be inadvertently created. It is important to have legal counsel prior to negotiating with occupants.

A surviving spouse and/or dependent minor child (under age 18) who lived with the decedent have special protection. California law allows for a so-called “Probate Homestead” to be established if a probate estate is opened that includes a residence if other requirement are met. A Probate Homestead can allow the surviving spouse and/or minor children to remain in the residence for a significant period of time.

Also, if the decedent owned the real property in a trust, the trust may allow certain persons to reside at the residence. The trust might allow a person to remain in the residence while it is being sold or it might allow for the person to have a life estate or a term of years to live in the residence. The trust should also say what responsibilities the occupant has for maintenance and expenses (insurance, taxes, and utilities).

Otherwise, if persons are occupying the residence and not paying rent, the trustee or personal representative will have to proceed with an appropriate legal action. In the case of a hold over tenant that would usually mean a civil action for Unlawful Detainer or an Ejectment. Otherwise, an action for Ejectment or a so-called “850 Petition” might apply. Which approach applies and is best in any given situation is an important decision to be made in consultation with a qualified attorney prior to proceeding.