Unsettled Estate Probate

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Unsettled Estate Probate

I live in California and my 2 siblings live in Mississippi. Our Mother passed about 9 years ago with all of her estate in Mississippi and she passed there. At the time my brother was living on my mother’s farm with his girlfriend now his fiancee. I agreed with him that he could live on the farm until his girlfriend’s house was remodeled and in turn he would move out and remodel Mom’s house to prepare it for estate settlement and sale. In the 9 years since I believe nothing has been done to fulfill this agreement. Now my brother will not even make an attempt to respond to my attempts to talk to him. In the years probate was never filed. I have discussed this with my sister and we both feel that enough time has passed for him to fulfill his obligation. I feel asthough I have been taken advantage of. First is the estate due rent as he has failed his obligation. Last what actions should my sister and I take?

Asked on March 18, 2016 under Estate Planning, California

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

The estate is not due rent, unless there had been an agreement for him to pay rent--you cannot after the fact transform permission for someone to live rent free into a rental agreement or situation.
The estate's personal representative (e.g. executor or court-appointed administrator) may remove him, however: if he's not renting, he's a guest; and a guest may be asked to leave at any time by the owner or, for an estate, by the personal representative. If he doesn't leave when asked, an "ejectment" action may  be filed against him ("ejectment" is eiction for non-tenants, like guests). The personal representative will need to retain an attorney, which may be paid out of estate funds, to file the ejectment action, because a non-lawyer, even a personal representative who has decision-making power, cannot represent an estate in court.


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