When a person dies, any property that they own will fall into their estate. In broad terms, the executor or personal representative will collect all of the assets and liabilities of the estate and then administer the estate when probate is granted.
While an estate is being administered, the property that was owned by the deceased remains in the estate, and therefore nobody else (including beneficiaries) has an interest in that property.
This point is often disputed as a beneficiary may argue that once someone has passed away and left a property to them, they believe that it is theirs. However, the reality is that it isn’t that simple.
Our Property Ownership Dispute Solicitors explore this scenario in more detail below and set out the following case study.
Case Study:
Fred has owned his main home for 10 years, and he lived there prior to his death. Unfortunately, Fred has passed away, and a week after his death, his sister, Julie, moved in.
Fred, fortunately, has a Will and left his property to his two sisters, Julie and Margaret.
The Will does not have any express rights for Julie to live there.
Margaret is the sole executor. Margaret believes it is in the best interest of the estate for the property to be sold. However, she cannot do this whilst Julie is occupying the property. What can Margaret do?
What is the Legal position?
An executor or personal representative has absolute power to decide how the estate is managed during the probate process. It is the duty of the executor or personal representative to ensure that the deceased’s assets are secure and protected.
As there is no express right in Fred’s will for Julie to live in the property after his death, nor is there a tenancy agreement in place, Julie does not have any legal right to live in the property. Under the eyes of the law, Julie is a trespasser and therefore Margaret will be able to take steps to obtain back possession of the property to enable her to sell it.
Initially, Margaret must issue a formal notice to Julie that she must leave the property and also sever any personal licence to occupy the property that Fred may have granted. If Julie refuses, Margaret will then need to issue Court proceedings. Margaret must have consideration for the rules around removing an occupier from a property, as an incorrect notice or failure to carry out the correct process could result in criminal prosecution under the Protection from Eviction Act 1977.
If Julie fails to leave once an order for possession has been granted by the court, Margaret can then take further steps to enforce the order.
Once Margaret has vacant possession of the property, she will then be in a better position to sell Fred’s property, after which the proceeds of the sale of the property can be distributed between the two sisters.
Contact Our Property Ownership Disputes Team
Myerson’s Real Estate Litigation team are experts in property ownership disputes.
We have a wide range of experience in these cases and can help you understand your options and guide you through the process. Please get in touch.
0161 941 4000
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Jennifer Hartley
Senior Associate
Jennifer qualified as a solicitor in January 2020 after completing her training with a specialist real estate firm. She joined Myerson upon qualification and has since become an integral part of the Property Litigation team, applying her expertise to a diverse range of contentious property matters.
Her practice covers a broad spectrum of issues, including TOLATA claims, residential and commercial landlord and tenant disputes, lease renewals, forfeiture, and advising on the right of first refusal. She also regularly advises on lease extensions and enfranchisement matters, guiding individuals and property owners through often complex statutory processes.
About Jennifer Hartley