A family member is living in the decedent’s home and refuses to leave. What do I do?

Quick Answer

You generally cannot simply change the locks. Once someone has been living in the home, Georgia treats removing them as a legal process rather than a self-help matter. The right route depends on whether an executor has been appointed, whether the occupant has any ownership interest, and whether they were a tenant. Get authority first, then act through the process.

Why this one gets ugly fast

It is almost always a sibling, and there is almost always history behind it.

Sometimes they moved in years ago to provide care and genuinely believe they earned the right to stay. Sometimes they moved in last month. Sometimes they are the one who has nowhere else to go, and everybody knows it.

Here is my comment. However justified your frustration is, the fastest way to make this longer and more expensive is to do something forceful before you have legal authority.

What you cannot do

Do not change the locks. Do not remove their belongings. Do not shut off utilities. Do not have them removed by anyone other than a sheriff acting on a court order.

Georgia has strong protections against self-help eviction, and doing any of the above can expose you personally to liability and hand the occupant a claim that had nothing to do with the estate.

It also, practically, ends any chance of resolving this without a courtroom.

Step one is authority

Nobody can act for the estate until the probate court appoints somebody. Until an executor receives letters testamentary, or an administrator is appointed where there is no will, there is no person with standing to deal with the house.

If you are the named executor and have not yet been appointed, that is the first move, not the last.

Then work out what the occupant actually is

The answer changes the process completely.

A beneficiary or heir with an interest in the property. If they inherit a share, they are a co-owner, and a co-owner cannot simply be evicted. Resolution comes through agreement, a buyout, or a partition action asking the court to divide or sell the property.

A tenant with a lease, formal or informal, including one who paid rent to your parent. They have tenant rights and removal runs through Georgia’s dispossessory process.

An occupant with no interest and no lease. Still not a lockout. The estate’s representative pursues the dispossessory process, and the court decides.

Somebody claiming a promise. “Mom said I could stay” is common and rarely written down. It may not carry legal weight, but it will slow things while it gets sorted.

The practical middle path

Court is expensive and slow, and in a contested probate everybody’s inheritance pays for it.

A negotiated exit with a realistic date, sometimes with help moving or a modest sum from the estate, frequently costs less than the litigation and preserves whatever family relationship remains. That is not weakness. It is arithmetic.

Document whatever you agree, in writing, signed.

Protect the estate meanwhile

Keep the property insured, and tell the insurer the truth about who is living there, because a vacancy or occupancy misstatement can void coverage.

Keep paying the mortgage and taxes if the estate has funds, since a foreclosure or tax sale harms every beneficiary.

Keep records of everything, because if this ends up in front of a judge the executor who kept clean records is in a much stronger position.

Your next step

If somebody is living in a deceased parent’s home and will not leave, schedule a complimentary 15-minute Strategy Session at 404-549-5001 before you take any action at the property.

More on how we support executors is on our Probate & Estate Administration page.

Related questions

• Is probate and/or estate administration necessary for my loved one’s estate?
• If I’m named as the executor or personal representative in the will, when can I start administering the estate?
• Is it okay if the family meets at the house after the funeral to distribute household furniture and possessions?
• Who qualifies to serve as an executor in Georgia?

This page is presented for educational purposes only and nothing on it should be treated as legal advice. What applies to you is very fact specific to your situation and your family. Our attorneys are licensed in Georgia and Michigan. This area of law has frequent statutory and policy changes.

   

Looking to find an experienced estate lawyer in the Georgia area who is skilled in asset protection and estate plan preparation? Shannon Pawley is an attorney in Georgia with expertise in estate planning and asset protection. Shannon can provide assistance with creating an estate plan to include making a will and how to establish a trust properly. If you have questions about asset protection or questions about making an estate plan, reach out to Shannon and she will be glad to help answer all the estate planning questions you might have!