Notice to vacate during probate proceedings?

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Notice to vacate during probate proceedings?

My grandfather passed and did not have a living Trust. He named his son the executor of the estate in his Will and willed the estate to all 3 of his children to divide equally. A court date has been set for the initial probate hearing. It is our understanding that the house may be listed for sale and sold during probate after the 1st hearing so long as the proceeds are added to the estate and not distributed until after. One of his daughters is currently residing in the residence rent-free she has lived there her whole life and does not have a source of income or plans for a future residence. We suspect she may attempt to sabotage the sale process by refusing the vacate so she can remain living there. Is there any sort of notice to vacate or pre-eviction notice that the other heirs can issue to her to notify her of intent to sell and provide a date by which she must vacate the property?

Asked on April 19, 2018 under Estate Planning, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 2 years ago | Contributor

She can be removed by the executor, acting on behalf of the estate, by first providing her a month+ (i.e. a month at a minimum) notice to vacate then, if she does not leave, bringing a kind of legal action (lawsuit) traditionally called an action "for ejectment" (though your state may have a different name for it) to remove her. If she is not paying rent, she is a guest; and a guest may be asked to leave and removed on notice by whomever has legal control of the property. A guest has no right to continue living there, regardless of whether she has any place to go or how long she has been there.
While the legal right to remove her is clear, actions for ejectment can be very "technical" in that minor mistakes in procedure can force you to start over. A very good idea is to retain a landlord-tenant attorney (who can be paid by estate funds) to handle this, from the initial notice through to the legal action and the actual removal of this person, for you.


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