How can my mother and I evict my late father’s girlfriend from the family home?

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How can my mother and I evict my late father’s girlfriend from the family home?

My parents divorced about 4 years ago, and dad had been in a relationship with “C.” My father passed away unexpectedly and did not leave a Will. He and “C” were living in the family home, and now “C” is being really unreasonable about everything. Here’s the twist – Mom and Dad’s names are both on the loan, but only Dad’s is on the deed. Dad bought out Mom on the deed as part of the divorce settlement. Everyone knows that without a Will, the estate goes to probate. But no one wants “C” in the house while that plays out, especially Mom, since she’s still liable for the mortgage. Can we evict her?

Asked on March 7, 2011 under Estate Planning, California

Answers:

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

Answered 10 years ago | Contributor

Actually, most estates need to go through probate whether or not there is a Will.  As for removing your father's girlfriend from the house, the estate/heirs do in fact have rights.  Once probate is opened a "personal representative" will be appointed by the court (a PR acts in the same capacity as an executor would if there had been a Will).  They will need to give this woman a written 30-day notice to vacate.  If she fails to leave the premises by the specified date, the PR will then need to file an "unlawful detainer action" (i.e. eviction).  If she is not paying rent she will be considered to be a "licensee (i.e. someone who entered and stayed on the property with permission), or if she paid rent (or a form of rent - utilities or the like) she will be a "tenant" in the eyes of the law (no lease is necessary).  In either event the lawful way to remove this woman is through the above-referenced unlawful detainer action.  To try and use "self-help" measures such as changing the locks and/or removing her personal belongings will open the estate up to a possible illegal eviction suit.  So be careful.  At this point you should speak to a real estate attorney who specializes in landlord-tenant matters or your PR can file the unlawful detainer action themselves if they choose (see http://www.courtinfo.ca.gov/selfhelp/other/landten.htm).


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