What can be done to evict a beneficiary from the premises until probate is settled?

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What can be done to evict a beneficiary from the premises until probate is settled?

My mother passed and 18 days later my brother also died. He was living in my mother’s house, along with his daughter. She refuses to pay rent or move out or give any other of the survivors a key to the house as we hold more interest in the property than she does.

Asked on December 22, 2017 under Estate Planning, South Carolina

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

The estate's personal representative (the executor if there was will; the court-appointed administrator if no will) has the right to remove any "guest" from the property if he or she thinks that doing so is better for the "estate" or the bulk of the beneficiaries, such as in that it will prevent wear and tear on the home, save money on utilities, let the home be remodeled, or prevent one beneficiary from getting an unfair benefit (rent-free living) over other beneficiaries. Non-tenant guests have no right to remain in property they do not own. Therefore, while you need a personal representative to be authorized or appointed by the court to have the legal power to act, that PR can remove the daughter if the PR feels it is the right thing to do. She would be removed using a procedure commonly called (though your state may have a different name for it) "ejectment," which is eviction for non-tenants. This is a fairly technical legal proceeding, and a procedural mistake can force you to start over; the PR would be well-advised to retain an attorney to help. (A landlord-tenant attorney should know how to do this.)
This would have to be done before probate, in the interest of the estate of the beneficiaries as a group; after probate, when this woman now gets her share of or interest in the home, she will be on the owners, and an owner has the right to use/occupy property. The majority owners could force the sale of the home, but not force a co-owner out pending sale.


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