Contentious Probate: Can a family member live in a deceased’s property while waiting for Probate?

This is an issue that often arises when administering an estate.

It may be that a beneficiary would like to occupy the property or has taken it upon themselves to simply move in after the Deceased passed away. On one hand it can be helpful to have someone in the property taking care of it however it can also cause the estate more problems if they subsequently refuse to leave.

The starting point is to consider whether the beneficiary has a legal right to occupy the property. Section 12 Trusts of Land and Appointment of Trustees Act 1996 (TLATA 1996) confirms that a beneficiary is 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.

A non- occupying beneficiary could not therefore force an Executor to allow them to occupy the property unless this was intended by the Testator and is stated within the Will.

Both Administrators and Executors do however have an absolute power to decide how land is dealt with under 39 of the Administration of Estates Act 1925 (AEA 1925), as amended by TLATA 1996 and could therefore allow a beneficiary to occupy a property unless the Executor’s power under this legislation has been restricted under the Will.

However Executors and Administrators powers do also always need to be considered in the context of the rights of the beneficiaries. In order to consider these rights they will need to consider:

  1. Whether the Will affects the Executors ability to deal with the property?;
  2. Whether all the beneficiaries are of full age and could consent to someone living in the property; and
  3. Whether it is likely to affect the ability to administer the estate.

When considering whether any occupation is likely to affect the administration of the estate the Executors and Administrators will need to consider what would happen if the beneficiary refuses to vacate the property. This consideration should take into account that under the Protection from Eviction Act 1977 it is a Criminal offence to evict a person from a residential property without a court order.

Once someone has moved into a property it can therefore be difficult to remove them if they will not willingly leave. If they will not leave when requested to do so then the Executors or Administrators would have to apply to court in order to force them to leave. If there is no tenancy agreement then you may need to formally request that they leave and then issue proceedings at the County Court on the basis that they are a trespasser.

One way around this would be to issue the beneficiary with an Assured Shorthold Tenancy agreement for a low or agreed rent. Whilst this will not prevent the need for a Court Order if they refuse to move out it may allow you to follow a simpler process. However they are also many legal restrictions and obligations placed on landlords so it would be advisable to take legal advice upon this before doing so.

If the beneficiaries are all of age and are happy to agree to the property being occupied then the Executor or Administrator may be inclined to agree with the written consent of all of the beneficiaries. However this is still not completely without risk to the Executor or Administrator as the beneficiaries may later argue that they did not fully appreciate the consequences of allowing another beneficiary into the property especially if there is a significant delay in removing the occupier and selling the property.

As it can be seen from the above that unfortunately there is no easy answer to this question. As Executors and Administrators are ultimately responsible to the beneficiaries careful consideration should therefore be taken before allowing a beneficiary to occupy a Deceased property.

If you would like more information relating to contentious probate matters, please contact Louise Sackey on louise.sackey@elselaw.co.uk or 01283 526235.

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