How to remove a person from a home that is part of an estate?

UPDATED: Oct 1, 2022

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How to remove a person from a home that is part of an estate?

My brother and his girlfriend, against my wishes and without my knowledge, moved into our deceased mother’s home. I have since been granted administration over the estate. The home is the only asset. I have personally been paying the mortgage since my mother’s death, nearly 2 years now. How do I get them out? Wouldn’t they be trespassing or are they considered squatters? My mother didn’t want him to have anything. I understand that he may be entitled to part of the assets. The whole point of probating this deal is to sell the house divide the assets. However, he’s in it and is refusing to leave. I want him gone swiftly so that he doesn’t have a chance to destroy the house.

Asked on May 18, 2018 under Estate Planning, Alabama


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

Answered 4 years ago | Contributor

As the administrator, you have a "fiduciary duty" to protect estate assets. Additionally, you now stand in the shoes of your late mother regarding having the authority to take action in such a situation. Accordingly, you can file for an "unlawful detainer" (i.e. an eviction). If your brother has paid no form of rent, then he is not even a "tenant". Accordingly, you could file an action for "ejectment", which is like an eviction for a non-tenant but is a faster process. Also, depending on just how long he has been living there, you could even report him to the police as a tresspasser. Just be sure to take no self-help measures such as changing the locks, etc. as you could find yourself in legal trouble if you do. Finally, once probate closes and title has passed to the 2 of you, then as a co-owner you could file for a "partition" action. In such an action, the court will order that the property be sold, if feasible. If not (as in the case of a single family house), the court will then order a "sale in lieu of partion". This will result in the house being listed for sale at fair market value to the general public. First, however, any owner who wishes to keep the property as the right to buyout the other owner(s), again for FMV. At this point, you should consult with a real estate/probate attorney. After reviewing all of the facts of your case, they can best advise you further.

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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