Can I evict a tenant while my properity is in probate?

UPDATED: Oct 1, 2022

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Can I evict a tenant while my properity is in probate?

My ex-husband is deceased but my name is still on the property. I know he wanted to leave everything to our nephew. He was his beneficiary. Well because he was living with his mother help take care of her until she passed. He rented out the property we shared. Now that he’s deceased the tenant hadn’t paid rent for the last 2 months. My ex had became really sick last month so no rent was collected. So I had my nephew take a new contact abt the rental agreement and he refuse to sign and think he don’t have to pay rent until it’s out of probate. So can I evict him since it’s legally minds now that my ex-husband is deceased.

Asked on May 9, 2019 under Real Estate Law, South Carolina


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 3 years ago | Contributor

Yes, you most certainly can. First, if your name is on the property, then you are currently an owner of the property, even while it is being probated. That alone gives you authority over the property. Only your husband's interest in it is subject to probate: yours is unaffected, and hence your authority over the property is unaffected. Second, the executor or personal representative over your husband's estate has legal authority to manage his interest in the property, including its rental during probate; that person--who is presumably you--would also have authority to evict a nonpaying tenant; therefore, you likely have a second ground or basis to exercise authority, in addition to your ownership. And finally, third, there is no legal right to not pay rent for living somewhere--ever. Being in probate does not foreclose the right of an owner and/or the estate to collect rent (the estate can collect rent to both pay the upkeep, etc. on the property and so that it--the proceeds from estate property--will go to whomever inherits once probate is done).
So, yes may evict him for nonpayment or rent; or if there is no currently in effect lease, following a month's notice terminating his month-to-month tenancy (when there is no writtren lease for a fixed time, tenancy is month-to-month). 

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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