Should I pay rent on my moms home going through probate.

Asked over 4 years ago - West Covina, CA

I am being asked to pay my sisters rent on my moms home while it is in probate. I am also being asked to make the repairs and fix it up for sale since I live here. I have been threatend if I do not pay I will not get my share of the estate. I was told that my share of staying here will be taken out of the sale of the home. What does the law require.

Attorney answers (2)

  1. Janet Lee Brewer

    Pro

    Contributor Level 17

    Answered . I disagree with Mr. Lively. You are a "beneficial owner" of the house under California law, even though the estate owns "legal title". An owner has the right to occupy the property s/he owns and does not have a duty to pay rent unless there is an express agreement in place that requires you to do so. As an owner, you cannot be evicted (since that law only applies to renters). Because you are an owner, your siblings cannot deduct "rent" from your share of the estate - they have no right to collect rent from you. Any repairs are the duty of all of the owners.

    Although the terminology is confusing, you and your siblings own the property as "tenants in common" - this type of "tenancy" has nothing to do with "renting". Keep that in mind as you read the following:

    California Civil Code section 843 deals with the rights of real property owned by 2 or more people at the same time (tenancies in common, joint tenancies, etc.). It says that a "tenant (owner) who is "out of possession" can obtain an "ouster" of an owner "in possession". One of the things an owner "out of possession" can do is concurrently "possess" (occupy) the property. No where does the law say that the owners "out of possession" can collect rent from the owner "in possession".

    This section also says that nothing precludes "the cotenants ... from making an agreement as to the right of possession among the cotenants, the payment of reasonable rental value in lieu of possession, or any other terms that may be appropriate."

    But it does not require that you pay rent.

    See: http://law.onecle.com/california/civil/843.html

    The information you obtain at this site is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

  2. Henry Daniel Lively

    Contributor Level 20

    Answered . If you are in a home that is owned by the estate, you can be required to pay rent until the estate is finally distributed. However, you are not required to make repairs and fix it up. This would be the estates expense. You cannot lose your share of the estate over this. The rent can be taken out of your share. You should hire a probate attorney to represent your interests in the probate.

    Any individual seeking legal advice for their own situation should retain their own legal counsel as this response provides information that is general in nature and not specific to any person's unique situation. Circular 230 Disclaimer - Advice given in this response cannot be used to eliminate penalties with the IRS or any other governmental agency.

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