Can you live in a house while applying for probate?

As an executor or personal representative of a recently deceased individual, you may face several potential issues and questions while applying for probate and dealing with the estate. Given the nature of inheritance, these issues and questions will usually centre around financial matters and property. One of the most common questions is whether you, beneficiaries or anyone else can live in the deceased’s property while applying for probate.

Why would someone want to live in a house before probate is granted?

There are several reasons. Someone who will inherit the property might intend to live in it anyway, so they may want to move in at the earliest opportunity. On the other hand, you or someone else close to the deceased may wish to live in the property to look after it during the probate and broader estate distribution process.

While this may seem sensible on the face of it, problems can arise should a person occupying the property subsequently refuse to leave.

What does the law say about allowing beneficiaries to live in a house before probate is granted?

Per Section 12 of the Trusts of Land and Appointment of Trustees Act 1996 (TLATA 1996), beneficiaries are entitled to an interest in possession if:

  1. The purpose of the Trust includes making the land available for their occupation; and
  2. The land is held by the Trustees and is therefore available

An executor or personal representative doesn’t hold the land until they have a grant of probate. Therefore, a beneficiary not already living in a property cannot force them to grant access or allow occupancy unless the deceased’s will states they should be allowed to take occupancy upon their death.

Can an executor or personal representative allow a beneficiary to take occupancy anyway?

Yes, unless the deceased’s will specifically addresses this and explicitly restricts them from doing so.

However, you should consider any potential action you may take as an executor or administrator of an estate in light of the rights of the estate’s beneficiaries and those you allow to live in a property.

For example, you would need to consider:

  • If there are any instructions or restrictions in the will that may affect your ability to deal with the property
  • If other beneficiaries are over 18 and can give their consent for another beneficiary or someone else to live in the property
  • Whether allowing people to live in the property – whether a beneficiary or someone else – would affect your ability to administer and distribute the estate in line with the will

Beware of things getting difficult

One of the biggest questions you need to ask yourself is this: What would happen if an occupant refuses to leave the property when you have probate and want to sell or otherwise deal with it in line with the deceased’s wishes.

For example, if you’re an only child inheriting your last surviving parent’s house and are the sole executor of their will, this won’t be an issue. However, if you’re in the same situation as a sole executor but have three siblings and allow one of them to live in the property, things could get tricky.

Were they to refuse to leave when you wanted to sell the property to split the proceeds according to the will, you would need a court order to force them to leave. Doing this might be difficult if you don’t have a tenancy agreement in place or the person is living in the property at no cost. At the same time, if you were to write a tenancy agreement so someone can live in a property while waiting for probate, you would then be a landlord and have legal obligations on this front.

What should you do?

Unfortunately, the time surrounding the death of a loved one can lead to you needing to undertake difficult conversations with other family members or those closest to the deceased. You may also find yourself in situations you don’t want to be in.

On the face of it, the easiest thing to do – unless you’re the sole beneficiary of an estate or another specific individual is to inherit the property – is not to allow anyone to live in a property owned by the deceased until you have dealt with it according to the will or rules of intestacy. However, if you do decide to allow someone to live in the property who isn’t the sole inheritor, consider your approach carefully and take legal advice to ensure yourself and the other beneficiaries won’t face another headache once you receive the grant of probate.

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