What to do if my father asked that his second wife of 2 years be allowed to stay in the house that he willed to me?

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What to do if my father asked that his second wife of 2 years be allowed to stay in the house that he willed to me?

Can I have her be responsible for the upkeep of the property, since she is not paying any rent? Do I need a lease since she is not really a tenant.

Asked on January 18, 2013 under Real Estate Law, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

From what you write, it appears that your father has passed away and the home has already passed to you--and further, that the second wife  was not a joint tenant or co-owner of the home. If so, and if the will did not require you to allow her to live there (and if she did not have some possessory interest previously granted her--for example, did not have a life estate in the home), then you would not be required to allow her to stay; if it is now your home without any "strings" you can decide whether or not to let her stay.

If you decide to let her stay, you can set the terms. You could make it a condition of her residence that she pay maintenance or upkeep--though note that if you do that, that will be considered "rent" and she will therefore be a tenant. It would be a good idea to put any agreement in writing; you can have it be a written lease that allows you to ask her to leave on, say, 30 days or 60 days notice, to give you flexibility. A landlord-tenant attorney can help you draft his.

If you don't want her there but she is living there at present, you'd have to bring an "ejectment action" to remove her. A landlord-tenant attorney can help you with this, too.


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