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Friday, May 30, 2014

If you live with a parent who passes away, do you have to move out right away?

If you live with a parent who passes away, do you have to leave the house right away? A reader who is in that situation recently asked me about this. Her question and my answer are below:

"My mother recently passed away and I was her caretaker for 12 years. My oldest siblings are the executors of her will and are applying some pressure for me to vacant the house to sell it. I'm not trying to drag it out, but I need to get my affairs in order etc... My sister and brother insist that the house HAS to be sold immediately. Is this true and if not, what time frame do I realistically have?"

I'll start off by assuming that your mother's will didn't talk about you staying in the house for any period of time. It's possible for a will to do that, and really handy when it does, but it's unfortunately rare.

I can explain why the executors are in a hurry to  have you vacate. Once you have left, they will have the place cleaned, perhaps even fixed up if needed, and list it for sale. There are reasons for their urgency:

1. If they keep the house in the name of the estate for too long, it may increase in value and thereby attract capital gains tax. That would mean extra tax to pay, at least one extra return to file, and delays in distribution of the estate.

2. The other beneficiaries (including themselves) want their money A.S.A.P. If you are not paying rent there, it may appear to the other beneficiaries that you are gaining an unfair advantage from the estate. The executors may themselves be under pressure from beneficiaries.

3. While the house is in the name of the estate, the executors carry the liability for any damage, and must pay for fire and contents insurance. Again, those are extra costs. And that's not even getting into the issue of who is paying for consumables such as electricity and water.

If you are living in the home without paying rent, there is no grace period built into the law for your situation. Your time frame is whatever you can negotiate with the executors. However, there are some constraints on their eagerness to sell. For one thing, they need the order of probate from the court to finalize the sale. They can list the house before getting the probate but they can't actually transfer the title.

This means that you should have a couple of months while the executors gather information, hire a lawyer, file the papers, and wait for the probate order from the court. If you want more time than that, you might offer to pay rent while you're there. The executors have their reasons for urgency as described above, but they should also realize that it takes time to sort, pack, and move when you've lived somewhere for twelve years, not to mention the time it takes to actually find a new place to live.

If you have been paying rent while living with your mother, you have the legal status of a tenant. The executors would have to go through the eviction process if you were not co-operative in agreeing on a moving-out date.

I generally don't find executors to be particularly compassionate towards someone living in the parent's home. I can't really explain it, but I've seen it time and again. I can only hope that open communication between you and the executors is available and effective.

2 comments:

  1. Somebody told me that there is a law that states any children (also adult) have the right to continue living in the family home and can not be forced to move out for sake of sale, even if they are not the beneficiaries.
    Is this true?

    ReplyDelete
    Replies
    1. I should add that I am an adult living in my father's house and my stepmother is the only beneficiary. I receive income support due to mental health problems and I do not have the means to move/ live elsewhere. My father said I would always be welcome there, although I don't have that in writing. Must I move without any help or compensation?

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