Can you live in a House during Probate?

Can You Live in a House During Probate?

Probate has quite the reputation for being painfully slow and expensive, and much of that is true a lot of the time. Of course, dealing with the death of a loved one is hard all on its own. Therefore, probate, sometimes, can be double the trouble. 

There are many complex legal rules that govern the probate process. These include who can be authorized by the court to administer the estate of the decedent, and how the estate itself can be treated. In most circumstances, it would be against the law to deal in any way with estate property without proper authorization of the court. No one, including the executor/administrator or beneficiaries can deal with the property without permission. 

As a result, it can be confusing to know what is allowed and what isn’t. Can you live in a house belonging to the estate while the probate process is still ongoing? Or do you have to move out when the probate process begins? If you are allowed to stay in the house, for how long will this privilege last?

To answer these questions and more, our New York Probate Attorney explains what the law regarding probate is, including how the law treats the house during probate. 

What is Probate? 

Probate, simply put, is the process through which the court (NY Surrogate's Court) confirms the validity of a decedent’s Will, and supervises the settlement of his or her estate. 

Probate proceedings also allow heirs to contest the will and the executor of the estate to be named and granted authority to act on behalf of the estate in estate administration. 

In New York, the probate process begins when a petition and an original will are submitted to the Surrogate’s Court in the county where the decedent lived. The petition provides the court with the necessary information to move forward with validating the will and appointing the executor. 

Probate is not compulsory, or universal. For instance, property that passes through joint tenancy or a living trust, passes outside of a will and is not subject to probate. 

In New York, a small proceeding may be filed if the value of the estate is under $30,000 and the decedent owned no real estate. The filing fee with the Surrogate’s Court is usually a small amount, and the process is available for persons who died with or without a will.

How long does Probate take? 

Probate usually takes a while on average, and its pendency usually depends on the many factors that may affect the length of the probate process. It may be swifter, and a mere formality where a Will is involved. 

The usual issues to contend with are the county backlog of probate cases to be heard, the time to locate and notify all heirs, and the existence of objections to the will. The process will take much longer if there are objections to the will or to the executor's appointment. 

Probate ends once the executor has officially been appointed by the court to act on behalf of the estate, and is given documentation as proof of such authority. This documentation will be vital to his or her duties, like collecting the decedent’s assets, manage bank accounts, etc. In essence, this marks the end of probate and the beginning of estate administration.

Living in estate property during probate

It is very common, since many estates in New York typically include real property, that a decedent owned a home they lived in with family at the time of death. 

Now, a home can avoid probate if it is automatically passed on through a living trust, joint ownership etc. Otherwise, the general rule is that if someone dies and owns real estate, any property they own is headed for some kind of probate process—will or no will.

This can be confusing for heirs and survivors, who still have to live in the house and may have nowhere to go if asked to leave. Which is why the question often comes up whether a person can live in a house undergoing probate. The answer is both straightforward and qualified. 

Generally, if you already live in the house – as your home or residence at the time when the decedent died – you may continue to live in it pending the outcome of probate proceedings.  Otherwise, the house is the property of the estate and you would have to get permission from the executor/administrator of the estate in order to move into it.

As a survivor or heir domiciled in the same house at the time of the decedent’s death, if the will is admitted to probate, under typical circumstances the ownership of the house passed to you by operation of law as of the decedent's date of death.

There is also no law that states that mandates that a property that is going through probate cannot be lived in. In fact, many state representatives like to have someone live in the property chiefly to:

• To receive rental income.
• Ensure that the property is properly maintained.

In the event that the house is previously established rental property, the lease signed by the tenants and now deceased landlord should typically persist. Where it expires while the home is going through Probate, the executor then will decide whether to continue the rental status of the property, subject to the best interests of the estate.

When are you not allowed to live in a house in Probate?

Where the house needs to be sold or transferred as part of the settlement of the estate, the continued occupancy of the residence by family members can prevent that sale or transfer.

In such instance, where the house is not your domicile, and you had not received unequivocal authorization from the decedent or executor to live there, oy may probably not be able to live in the house. 

In that case, there are a number of ways that an estate executor or administrator re-possess the property and evict the remaining occupants, like through turn-over proceedings commenced in the Surrogate’s Court.

It may also be possible to obtain an eviction in the local housing or Landlord-Tenant Court. These proceedings, whether brought in the Surrogate’s Court or the Landlord-Tenant Court, seek to have occupants removed from estate property.

Usually, the issue comes up in these types of cases is whether the occupant should be liable to pay rent or use and occupancy to the estate for the period of time that the occupancy was unauthorized.

Speak to our Probate Attorney today

The answer to this question, though direct, may yield separate answers depending on your situation. If you would like extensive legal advice, please contact our firm. In any case, you may need an experienced NY Probate attorney to determine your rights and options in the circumstances. 

You should discuss your concerns, if there are any, with our experienced NY Probate attorney. Attorney Jimmy Wagner can render expert advice, and help you make the best decisions in relation to the probate process. 

Get in touch with our experienced New York Elder Law attorney today by contacting us at 929-477-8889 for a consultation.