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Can an executor evict?

Norfolk, VA |

Can an executor evict a beneficiary from a house that was willed "share and share alike"? Everyone, except the person living there, wants to sell. She's been living there rent free four years. The home is deteriorating badly and she won't let anyone in. The executor, also a beneficiary, has Letters of Testamentary. Is a forced sale the only option?

Attorney Answers 3

Posted

Several things do not sound right here.

An executor named in a Will only has power to act if she is appointed by a court in a probate case. Probate cases usually take between 9 months and two years to complete. If this executor was appointed, four years is a long time for her to continue acting as executor. She is answerable to the judge who appointed her and to the beneficiaries and creditors of the estate. If the house is deteriorating and she will not let anyone in, this should be brought to the judge's attention. If she does not have a very good explanation, she can be removed as executor and another person appointed. This replacement executor can repair the house and make sure that all the persons entitled to live there have access.

I suggest that you contact a local attorney to assist you immediately.

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hope this helps.
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LEGAL DISCLAIMER
James Oberholtzer is licensed to practice law in the Commonwealth of Virginia and the States of Illinois, Oregon and Washington. He has offices in Chicago, Illinois and Portland, Oregon. His law practice focuses on estate planning, probate administration, family succession planning, tax,real estate and tax exempt organizations.

The foregoing statements do not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in the subject area in your state. The law changes frequently and varies from state to state.

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Posted

The executor has the right to control assets of the estate prior to distribution: if the house has not changed title into the names of the beneficiaries (usually done by the executor using a deed of distribution),the executor can act for the estate and follow the eviction procedure provided for under state law.

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1 lawyer agrees

Posted

I agree there are some things here that do not sound right, and you should get with a local estate administration attorney to make certain everything is handled correctly. If the house was willed "share and share alike" then unless the executor is acting pursuant to a power of sale the property already belongs to the beneficiaries. In Virginia, the recorded will acts as a deed, and no deed of distribution is required, though sometimes a deed of confirmation will be recorded for clarity. In that light - and again, it depends on the facts - all the beneficiaries likely own the real estate and the executor has no authority to act (unless pursuant to a properly granted power of sale).

The other beneficiaries could attempt to evict the person living in the house, but if that is not successful you will likely need to resort to a partition action. The partition action will need to be handled by a real estate attorney and could either result in a complete sale of the property or a sale of the interest of the individual living in the property to the other beneficiaries. Either way, you should get in touch with a local estate administration attorney to seek assistance immediately.

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DISCLAIMER: THE INFORMATION PRESENTED HERE IS GENERAL IN NATURE AND IS NOT INTENDED, NOR SHOULD IT BE CONSTRUED, AS LEGAL ADVICE. THIS POSTING DOES NOT CREATE ANY ATTORNEY-CLIENT RELATIONSHIP BETWEEN US. FOR SPECIFIC ADVICE ABOUT YOUR PARTICULAR SITUATION, CONSULT A QUALIFIED ATTORNEY.

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