Living in a House During Probate in California

Someone is living in the house, the owner has died, and probate is starting. The questions come fast: Can I stay? Does anyone owe rent? Who pays the mortgage? What happens if the house sits empty? The answers depend on who you’re relative to the person who died, and whether the house is in probate or in a trust.

Can you live in a house during probate in California?

Usually yes, if you lived there before the death and the executor doesn’t object. Title to a decedent’s property passes at death to the person named in the will, or to the heirs if there’s no will (Prob. Code § 7000), but that property remains subject to administration and to the rights of creditors and other beneficiaries (Prob. Code § 7001). The person with the authority to decide who occupies the house is the executor or administrator, formally the personal representative.

Under Prob. Code § 9650, the personal representative takes possession or control of estate property and is entitled to the rents and profits until the estate is distributed. Real property may be left with the person presumptively entitled to it, unless the personal representative later decides possession is necessary for administration, and the occupant must then surrender it on request. So the answer to “how long can I live there” is: until the personal representative needs the property for the estate’s purposes.

Before letters issue, nobody has power to administer the estate, though a named executor may pay funeral expenses and take necessary steps to maintain and preserve the estate (Prob. Code § 8400). That covers securing the house and paying urgent bills. It doesn’t cover renting it out or selling it.

Who can stay, and for how long?

It turns on your relationship to the estate. The table sorts the common situations.

Who you are	Your right to stay
Surviving spouse or minor child	Statutory right to remain in the family dwelling until the inventory is filed and for 60 days after, or longer if the court orders (Prob. Code § 6500). A court may then set apart a probate homestead for a limited period.
Beneficiary who inherits the house	No statutory right during probate. In practice the personal representative usually lets you stay, because an occupied house is safer than an empty one.
Beneficiary who inherits a share of the house with others	Same as above, but co-beneficiaries can object if one heir gets free use of an asset all of them own a piece of.
Sibling or relative who isn’t a beneficiary	Only at the personal representative’s discretion. A written, short-term arrangement is safest.
Tenant with a lease	The lease stays in effect. The personal representative collects the rent (Prob. Code § 9650(a)(2)).
Surviving joint tenant	You own the house through the title, and it isn’t in probate. See the affidavit of death of joint tenant.

A surviving spouse or minor children

Probate Code § 6500 gives the surviving spouse and minor children the right to remain in possession of the family dwelling, the family’s clothing, household furniture, and other property exempt from a money judgment. The right lasts until the inventory is filed and for 60 days after, or for another period the court orders for good cause. Any interested person can petition for the order (Prob. Code § 6501).

The inventory is due within four months after letters first issue, and the court can allow more time (Prob. Code § 8800). So the automatic protection can run up to about six months from the date letters are issued. After that, a spouse or minor children can ask the court to set apart a probate homestead, a court-ordered right to occupy one home for a limited period. It’s discretionary, available only to a surviving spouse or minor children, and “in no case beyond the lifetime of the surviving spouse, or, as to a child, beyond its minority” (Prob. Code § 6524).

Family allowance

A family allowance is a sum from the estate for support during administration, not a right to the house. The surviving spouse, minor children, and adult children who can’t earn a living because of a disability and depended on the decedent are entitled to a reasonable allowance. The court may also award one to other dependent adult children and to a dependent parent (Prob. Code § 6540). It can start on the date of the order or another date the court sets, but not before the date of death (Prob. Code § 6542).

A sibling who isn’t the beneficiary

A brother or sister who lives in the house but takes nothing under the will has no legal claim to stay. The executor can allow it, and often will for a short time. But the executor has to be able to end it. If the sibling won’t leave when asked, the executor has to remove them through the courts, not by changing the locks. Our page on when a tenant won’t leave an inherited property covers the process.

Does someone living in the house owe rent to the estate?

Sometimes, and there’s no fixed rule. The personal representative is entitled to the rents and profits from estate real property (Prob. Code § 9650(a)(2)) and must manage the estate with “ordinary care and diligence” (Prob. Code § 9600). A personal representative who lets one heir live rent-free while the estate pays the mortgage and the estate loses value can be charged with the loss (Prob. Code § 9601).

A statute helps when the house was left to one person by name. A specific devise carries the income from the property from the date of death, less expenses attributable to it, which include property tax and other costs that come from owning or using it. If the income doesn’t cover those expenses, the estate pays the shortfall until the property is distributed or the devisee takes possession or occupies it, whichever comes first. Any shortfall the estate pays after the first year following death is charged against the devisee’s share (Prob. Code § 12002). In plain terms, the heir who moves in and enjoys a house left to that heir should expect to carry its costs.

The simplest fix is a short written occupancy agreement between the personal representative and the occupant. It says whether the occupant pays rent, or instead pays the utilities and upkeep and gets a credit against the eventual distribution.

Who pays the mortgage during probate?

The mortgage stays due, and it should keep being paid. The personal representative has to pay taxes on, and take all steps reasonably necessary to manage, protect, and preserve, the estate (Prob. Code § 9650(b)). Missed payments lead to default and foreclosure.

Federal law helps the family here. Under 12 U.S.C. § 1701j-3(d), a lender can’t call a residential loan due only because the property transferred to a relative on the death of the borrower, or because a spouse or children became an owner. So there’s no need to refinance right away. Our page on what happens to the mortgage when you inherit a house covers the loan side, including the lender’s servicing contacts.

Where the money comes from is a practical question. If the estate has cash, the personal representative pays from it. If the house is the only asset, the occupant heir, or all the heirs, often advance the payments and get credit for them. The only-asset-is-the-house page deals with that squeeze.

What about homeowner’s insurance and vacancy?

Tell the insurer about the death right away, and confirm who’s covered. A standard policy is written for the named owner, and many policies limit or exclude certain losses, such as vandalism and water damage, after a home has been vacant longer than the period stated in the policy’s vacancy clause. If an heir lives there, ask the insurer whether it wants the estate or the occupant named on the policy. If nobody lives there, ask about a vacant-dwelling endorsement before the vacancy clause kicks in.

The personal representative’s duty to protect the estate (Prob. Code § 9650(b)) includes keeping the house insured. An uninsured loss on an estate house is one of the easiest ways for a personal representative to end up personally exposed under § 9601. If the house is in a trust, see homeowner’s insurance for a house in a trust.

What if the house is in a trust instead of probate?

The trustee makes the call, and the trustee has more legal constraints than most people expect. When the person who made the trust dies, the trust generally becomes irrevocable, and the trustee has to notify beneficiaries and heirs within 60 days (Prob. Code § 16061.7). Nobody needs court approval for a trustee to let a beneficiary live in the house, but three rules apply.

• Loyalty. The trustee must administer the trust “solely in the interest of the beneficiaries” (Prob. Code § 16002). A trustee who’s also the sibling living in the house can’t set the terms in the trustee’s own favor.
• Impartiality. When there are two or more beneficiaries, the trustee has to deal impartially with them and take account of their differing interests (Prob. Code § 16003). Free housing for one sibling is a benefit the others didn’t get, so it should be documented and, usually, charged against that sibling’s share.
• Preservation. The trustee must take reasonable steps to keep control of and preserve the trust property (Prob. Code § 16006). Preservation means insurance, taxes, and upkeep.

The same fixes work as in probate: a written occupancy agreement, rent or a credit, and a date. Our guides on the trustee’s first 90 days and whether a trustee can sell property without beneficiary approval pick up from there.

How does occupancy end?

It ends when the house is sold, bought out, or distributed. The house has three exits, and the personal representative or trustee chooses among them within the terms of the will or trust.

1. Sale. A personal representative may sell estate property to pay debts, devises, family allowance, expenses, or taxes, or when a sale is to the advantage of the estate and in the best interest of the interested persons (Prob. Code § 10000). Occupants have to leave for the sale. See how court confirmation of a probate home sale works.
2. Buyout. One heir keeps the house and pays the others their share. That’s often how the sibling living there ends up owning it. Prop 19 and financing shape the price. Our page on sibling buyouts and Prop 19 walks through it.
3. Distribution. The house is distributed to the beneficiaries, either by court order at the end of probate or by the trustee’s deed. Small house estates may skip full probate: if the house was the decedent’s primary residence in California and its gross value is $750,000 or less, a successor can petition under Prob. Code § 13151 once 40 days have passed since death (Judicial Council form DE-310).

In my practice, a straightforward probate takes twelve to eighteen months, so a family living in the house should plan for about that long, unless it’s a contested estate or the house needs to be sold sooner. How long probate takes in California explains where the time goes.

A Ventura County example

Roberto dies in Oxnard with a will leaving his house to his daughter Elena and his son Marco equally, and naming Elena as executor. The house is worth about $880,000 with a $310,000 mortgage at a $2,150 monthly payment. Marco lives there. He moved in three years ago to care for Roberto.

Elena opens probate at the Juvenile Justice Center, 4353 E. Vineyard Ave., Oxnard, usually Courtroom J6, and receives letters. She lets Marco stay. They sign a one-page agreement: Marco pays the utilities and the mortgage for now and keeps the receipts, and the estate credits him against his share at distribution. Elena confirms the insurer knows Roberto died and adds Marco to the policy. Fourteen months later the court approves distribution. Marco buys out Elena’s half through a refinance. Because the two heirs agreed in writing on who pays what, there was no fight over the fourteen months of carrying costs.

Without that agreement, Elena could have faced a dispute. If Marco had lived rent-free for a year while the estate paid the mortgage, she might have asked for her half of the fair rental value. Written terms cost almost nothing and prevent that argument.

Frequently asked questions

How long can you live in a house during probate?

There’s no fixed limit in California law. A family member can usually stay until the personal representative needs the house for a sale, a buyout, or distribution, which in my practice is often twelve to eighteen months. A surviving spouse or minor child has an added statutory right for the period set by Prob. Code § 6500, and a court can extend it.

Can I be forced to leave a house in probate?

Yes, if you don’t have a legal right to be there. The personal representative can require you to surrender the property when it’s needed for the estate (Prob. Code § 9650(c)). If you refuse, removal goes through the courts.

Can I live in my parent’s house while probate is pending if I’m one of several heirs?

Often, with the personal representative’s approval. Expect the other heirs to ask that you cover carrying costs or that the value of your use be charged against your share. A written agreement heads off that argument.

Who pays the property taxes and mortgage while the house is in probate?

The personal representative pays taxes and takes the steps needed to preserve the estate, from estate funds when there are any (Prob. Code § 9650(b)). When the house was left to one person and that person moves in, § 12002 shifts the carrying costs to that person.

Can the executor rent out the house during probate?

Once letters issue, the executor is entitled to the rents and profits from estate real property. The executor has to use ordinary care, so renting to a reliable tenant at market rent is a common choice when no heir is living there. Get the will or court order reviewed if the house was specifically left to someone.

Does a surviving spouse have to leave the house during probate?

Not automatically. A surviving spouse has the right to remain in the family dwelling until the inventory is filed and 60 days after, and can ask the court to extend that or to set apart a probate homestead. A spouse who inherits the house under the will, or owns it as a joint tenant, has stronger rights.

Is a house in a living trust treated differently?

Yes. There’s no probate court supervising occupancy, but the trustee still owes duties of loyalty and impartiality (Prob. Code §§ 16002, 16003), so free use by one beneficiary should be documented and fair to the rest.

Do I need a lawyer to stay in the house during probate?

Not to stay, but a written occupancy agreement is worth having drafted when the estate is more than a few months from closing. I handle petitions to the probate court, contested or not. Will and trust contests, and anything headed to trial, I refer to litigation counsel.

Most disputes over an occupied house come from who paid what, and nobody wrote it down. A one-page agreement fixes that. Our fees page lists what I charge, and the probate screener can tell you whether this house will need probate at all.