Can You Live in a House During Probate?

When someone passes away, the process of distributing assets to their heirs can take time. Not only are people working through their grief, but they are also navigating probate while the courts decide who gets what. This process can be even more confusing when houses are concerned. A loved one doesn’t want to lose their living situation while the will is reviewed. 

The first thing to know is that yes, you can live in a house during probate. However, your access to a property depends on several critical factors, including your relationship to the deceased. State laws and the specific circumstances of the estate can also impact the legality of living in the home. 

Even if you have the legal right to the property, moving in immediately might not be the best decision. This article will walk you through the complexities of living in a house during probate with the legal, financial, and personal aspects of this choice. Here’s what you need to know.

What is Probate and Your Housing Rights

Probate is the legal process of reviewing the assets and debts of a deceased individual. This process is done through the courts with the help of the executor of the will. The legal parties will pay off debts and close accounts, then distribute the remaining assets to potential heirs. 

During probate, the property technically belongs to the estate, not to individual heirs. The courts have not officially transferred the house or land in question. This creates unique legal situations where occupancy rights aren’t always obvious.

Many people ask, “Can you live in a house during probate?” because they don’t know if they can legally move into a property they don’t yet own. 

The probate process takes anywhere from six months to several years, depending on how clear the deceased’s will is. Without a will, it may take longer to go through the estate assets and find qualified heirs.

The will’s validity can also be contested in probate court, which will further slow the process. Even bureaucratic problems, like court backlogs, can slow down the distribution process and leave everyone frustrated.

Some Relationships Are Protected

When someone passes away, it makes sense for some heirs to stay within the house. For example, it makes sense for the surviving spouse to stay within their home, even if their husband or wife technically owned the property. The couple might also have a joint tenancy agreement where one person takes full ownership of the home when the other passes. 

Some heirs also use the concept of beneficial ownership to stay in a property. This is the idea that someone enjoys the benefits of owning a home even if they aren’t technically on the deed. For example, if a parent was clear that a child would take over a house when they pass, that child might move in with the expectation of beneficial ownership. 

Every state has different laws for when heirs can take over a property, and every family is different. While an only child might feel comfortable moving into a house unchallenged, a sibling with several brothers and sisters might not be able to make a complete claim to the property. If multiple heirs want the house, they might not want others moving in until the probate court determines ownership.

Who Can Live in the House During Probate?

There are different types of occupants who can live in a house throughout the probate process. Here are a few people who are likely to move in or continue to reside in the property.

Surviving Spouses

The spouse of the deceased is most likely to continue residing in their home after their husband or wife passes. Many states have homestead exemptions designed to protect the spouse during the probate process. Unless the will specifies otherwise, this spouse is also the likely beneficiary. 

In some states, the spouse might legally own the home after their loved one passes away. The nine community property states are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin. With community property, assets acquired during marriage belong to both spouses. If the couple gets divorced, the assets are split 50/50. 

Named Beneficiaries and Heirs

There is a significant difference between beneficiaries and heirs. An heir is related to you through blood or marriage (like a spouse, children, sibling, or parent). A beneficiary is someone you specify in your will. For example, if you want a close friend to take over your house when you die. Heirs are most likely to take over a property, but named beneficiaries can also reside in the home, especially if they already live there. 

If multiple heirs exist (like multiple siblings after a parent passes away), they need to agree on occupancy. Oftentimes, the sibling who needs the home, wants it, or lives closest to it will occupy and maintain the property. However, if multiple siblings want the house, there could be disagreements over who gets to live there during the probate process.

Executors and Personal Representatives

An executor is the personal representative of the estate. Their job is to make decisions based on the will of the deceased. They have a fiduciary duty to the estate, which means they need to act in a manner that protects the assets. They are also required to treat all beneficiaries fairly. 

Executors can make occupancy decisions for the estate property and can charge reasonable rent to occupants. If the beneficiaries contest occupancy, this personal representative often decides who should live in the home. 

Non-Family Occupants

There may be situations where tenants are neither beneficiaries nor heirs. These include longtime caregivers, family friends, or tenants who were living in the property at the time of death. The personal representative will try to honor any existing lease agreements and make arrangements to collect rent payments. 

If the non-family occupant was not paying rent, like a live-in caregiver, the family or executor can determine how long they can stay at the property. For example, that caregiver might be allowed to stay in the home throughout the probate process as a property caretaker or until they find other work.

State-Specific Laws and Variations

Probate laws vary by state, which means you may want to speak directly to the executor or a probate attorney if you have any questions about occupancy. You aren’t the first person to ask, “Can you live in a house during probate?” and these legal professionals should be able to walk you through your options. 

Also, 18 states have adopted the Uniform Probate Code, which was designed to unify and simplify the probate process. If you live in one of these states, you may have an easier time understanding your occupancy rights. 

If you are not part of the UPC states, you can look into other laws that may offer protections. Here are a few places to check. 

Community Property Laws

The nine community property states often allocate immediate ownership of the surviving spouse’s half of the property. The court will focus on covering any outstanding debts while allowing the spouse to take control of the property during the probate proceedings.

If the spouse has also passed, the deceased person’s estate goes through the probate process to identify the proper heirs and beneficiaries.  

Homestead Exemptions

Some states provide strong homestead protections that can allow family members to remain in the house during probate. In this case, the residents would only have to move out of the deceased individual’s estate if the court determines that another party should legally own and live in the house. 

Streamlined Probate States

Some states have simplified their probate procedures to support smaller estates. This way, small or uncomplicated cases don’t take as long to navigate the legal intricacies of probate. These procedures put less stress on loved ones and shorten the process of transferring property.

You don’t have to be an expert in the legal requirements of your state. Instead, talk to a probate attorney about any streamlined or uniform codes that can make this process faster. If your loved one has a detailed will or comprehensive estate plan, the process of settling debts and dividing assets might be smoother than you expect.  

Financial Responsibilities While Living in Probate Property

The house you live in may come with financial obligations that you need to keep up with. Even a fully paid-off house still comes with property taxes. Here are some financial aspects to consider. 

Ongoing Property Expenses

Whoever lives in a house during probate often needs to keep up with the expenses of maintaining it. This can include making mortgage payments, covering insurance premiums, paying property taxes, and covering utilities. Because the estate is still going through the probate process, the beneficiaries won’t have access to the bank accounts of their loved ones. This means whoever lives in the house needs the finances to maintain it. 

These responsibilities can vary based on the occupant’s legal status and any agreements with the executor. If multiple heirs want to sell the house, the estate may agree to cover the costs of running the home until the new buyers close on it.

Use and Occupancy Fees

If someone moves into a house that is still going through the probate process, the personal representative may charge use and occupancy fees until the estate is settled. This usually occurs when the person in the house is not legally allowed to be there. For example, if a sibling moves in and claims they deserve the house while their brothers and sisters challenge whether the will is valid, the executor may ask the court to approve a fair market rental rate. 

Even named beneficiaries may be asked to pay rent while the court is still settling debts and determining what to do with the remaining assets. This is because the house might need to be sold to cover outstanding debts.

Property Maintenance and Repairs

The executor has a fiduciary responsibility to maintain the property’s value during the probate process. This means keeping up with routine maintenance and making emergency repairs. For example, if a tree branch falls on the house and creates a hole in the roof, the executor needs to work quickly to secure repairs before water gets into the house and spreads mold while damaging the foundation. If the executor failed to maintain the house, the value of the asset would be much lower by the time the heirs take over. 

These costs are typically handled by the estate and may require court approval. The occupant may also take over the costs with the goal of being repaid when the deceased person’s assets are distributed.

Insurance Considerations

The probate property needs to be insured throughout the legal procedure. The executor should call the insurance company and make them aware of the status of the property. They should also update the insurance policy to reflect any occupants moving in during the probate process.

Practical Steps for Probate Property Occupants

The days following the death of a loved one can be overwhelming, especially if you are responsible for handling the funeral and closing their accounts. Here are a few steps you can take to streamline the process and work with the executor while occupying the house during probate.  

• Start working with the executor: This representative needs to know who will be living in the house during probate and will confirm that your tenancy is acceptable with other beneficiaries. 
• Alert the insurance company: Let the insurer know that the owner has passed and that you are taking over the house. 
• Transfer the utilities into your name: this way, you can keep up with the monthly payments and not lose service.
• Take over the property: Secure the house and consider changing the locks. This way, you know who has access to it. 
• Keep up with property maintenance: Make repairs when necessary and maintain the house through seasonal changes. You may want to work with a property manager if you cannot keep up with the house on your own. It is essential to maintain your property values through the probate process. 
• Save all documents and records: Save all receipts for property expenses, improvement costs, and any rent or use fees paid to the estate. You can even record any ongoing expenses, like internet bills. 
• Take steps toward legal protections: Document occupancy arrangements and seek formal agreements to protect your tenancy. This can help you avoid unexpected and illegal evictions. 

Clear communication and documentation go a long way to maintaining occupancy. You can navigate this complex process effectively and overcome any issues until probate is complete.

When You Cannot Live in the House During Probate

There are some instances when you cannot live in a house during probate. You may encounter a few legal issues that keep you out of the home, even if you were willing to sign an occupancy agreement. Here are a few situations to be aware of. 

• Court-Ordered Sales: Some courts require property sales to pay debts, cover estate taxes, or resolve family disputes. In this case, the asset distribution would include the cash from the home sale. 
• Creditor Claims: Outstanding debts against the estate can force property sales. Occupants may try to work with the executor and creditors to pay off the debts if they want to keep the house. 
• Family Disputes: Irreconcilable disagreements among heirs can lead to forced sales. If the heirs cannot agree on who gets the property, then no one gets it. However, this is a last resort for many heirs and executors often go through multiple stages of mediation before requiring a home sale. 
• Property Condition Issues: Sometimes, the property owned by the deceased becomes uninhabitable or unsafe during probate. The occupants must sell the house because it cannot be saved. 

Selling the house is rarely the first choice when it comes to solving potential disputes. Many executors want to follow the deceased’s wishes while providing living arrangements for those who need them. Eviction proceedings of family members can also be stressful and ruin relationships. However, if the family can’t agree or the estate’s debts are too high, the executor may be required to sell.

Know Your Rights Related to an Estate Property

It’s possible to live in a house during probate, but the process might be more complicated than you think. You may need court approval to reside there and will need to cover the property-related expenses at least until the estate is settled. An experienced probate attorney can help you learn about your options and guide you through the property distribution process. 

Every probate situation is unique and requires personalized attention. Even if you think you understand probate law, work with an expert who can navigate this challenging process. 

FastExpert can also help if you are living in a house during probate. You can find both legal professionals and real estate experts to guide your actions. Whether you want to stay in the house for decades or sell it to cover the deceased’s debts, FastExpert can help. Hire the professionals you need so you can find peace of mind during their difficult time.