If I am the Personal Representative of my mother’s estate, does my brother have rights to stay in our late mother’s house just because he lived there for free the last 3 years?

At the time of my mother’s passing one of my brother’s was living in her house. He has been for about 3 years. The last year of my mom’s life she spent in assisted living. During the years that my brother has been there he has not been made to pay rent. He only takes care of the utilities that he uses. Now, as a family, we need to sell the house. Does my brother have rights to stay due to the fact that it has been the home for the last 3 years even though he has not been made to pay rent my mom during that time? Currently the situation is status quo until we/I understand the ramifications.

Asked on October 9, 2017 under Estate Planning, Wisconsin


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Since your brother pays utilities, he will legally considered to be a "tenant". Since he has no lease, he has a "month-to-month" tenancy. This means that you, as PR, must give him a a 30 day notice to quit on the last day of the month. If he fails to leave at the end of that time, then you can bring an "unlawful detainer" action in court (basically an eviction). At such point as the court finds in your favor, your brother can either volitionally vacate the premises or you can have a sheriff physically remove him if necessary. At this point, you should consult directly with an attorney who handles landlord-tenant cases as they can best advise you further.

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