Learn Important Probate Essentials, including key things that go wrong in an estate, how to prevent them, and what to do if they happen.
One of the most aggravating experiences in probate is dealing with someone who stubbornly refuses to leave the estate home. This person could be an heir or, in some cases, the personal representative who lived with the deceased before death.
Situations like these can complicate matters, delay the progress of the probate, and even lead to additional legal fees.
If you’re feeling unsure of what to do, it’s a good idea to understand your rights and legal options. An experienced probate attorney can provide guidance and help you protect the estate’s assets.
Disagreements are not uncommon when several heirs feel entitled to make decisions on their loved one’s property. In Georgia, determining who has the authority to do this will depend on the deed.
Below are two possible scenarios.
If someone else is listed on the deed, the property may either have a Joint Tenants with Rights of Survivorship (JTWROS) or Tenants-in-Common (TIC) title.
With a JTWROS title, the ownership automatically transfers to the surviving owner/s when a co-owner dies.
On the other hand, if the property has a TIC title, it becomes part of the deceased’s estate and goes through probate. This process will determine how it will be passed on to heirs and beneficiaries.
It’s important to remember that the default way for multiple people to own a property together is through Tenants-In-Common. So, unless the deed specifies that it is JTWROS, the real estate might be considered TIC.
When no one else is listed in the deed, the decedent is seen as the sole owner of the property.
The executor named in the will (if there is one) can then decide on estate property matters once the will is accepted by the Probate Court. On the other hand, when there is no will, family members will need to nominate an administrator.
Once the court appoints an administrator, that person will gain the authority to handle how the property is passed on to heirs and beneficiaries.
If the will lists an heir as the sole beneficiary, and there are no outstanding creditors, then that person will receive their inherited house after the will has been probated.
However, if there are outstanding creditors, the personal representative will use the estate’s assets — not just money — to pay off as much debt as possible. If the estate does not have enough assets to cover the debts, the executor may need to sell the home to satisfy those creditors.
As a rule, all creditors must be satisfied correctly before any assets, including the home, are distributed to the beneficiaries.
If an heir refuses to leave the estate home because they believe they have inherited it, the executor can take steps to have them evicted.
Without a will, the estate administrator would be in charge of the decedent’s estate. They will be legally considered the “owner” of the estate’s property once they are appointed by the court. This gives them the power to decide who may or may not live in the estate home.
When someone refuses to leave the estate home, the administrator would have the legal duty to seek court intervention. That means they can ask to have that person removed from the property.
The only exception to this rule is when a valid lease was already established before the owner’s death. In that case, the tenant will have the right to continue living in the home following its terms.
Anyone who occupies the estate home without a lease or the administrator’s consent may be evicted. Similar to how a landlord would evict a tenant who fails to pay rent, the executor can ask that person to leave, even if they were the decedent’s adult children.
The eviction process, however, does not happen in probate court. Instead, either the magistrate’s court or superior court oversees it, depending on the county where the property is located.
You can consult with an eviction attorney if you’re dealing with someone who refuses to leave the estate home. But the steps typically start with sending an eviction notice.
There can be situations where the executor or administrator occupies the estate home while administering the estate. This goes against their fiduciary duty to never put their personal interests ahead of everyone else’s.
First, remaining in the decedent’s home can delay the executor from settling the estate as quickly as reasonably possible.
Also, even if they were a family member who was living with the deceased in the past, they should move out of the home, especially if it is causing harm to the estate.
The executor can only continue living in the family home when they secure permission from all the beneficiaries. Even then, the best practice is to pay rent to the estate.
The idea is that someone could have rented the property had the personal representative not occupied it. Establishing a rent payment plan, if agreed upon by all the beneficiaries, might be a better option to prevent losses.
The court takes violations of fiduciary duty very seriously and could lead to the executor’s removal, along with other sanctions.
If some heirs want to keep the inherited home while others want to sell it, the decision on what to do may depend on whether or not there is a will.
If there is a will, the court will appoint an executor who must first settle all the outstanding debts before transferring any property. The executor may need to sell the property if there are not enough assets to satisfy what the estate owes.
Assuming the property remains after the executor paid all the creditors, here are the possible scenarios:
If there is no will, the Probate Court will appoint an administrator who will distribute whatever remains from the estate after paying all outstanding creditors.
With the property intact, whoever wishes to keep the property can buy the shares of the other heirs.
When heirs cannot agree on a fair market price, selling the property might be the best option as they can split the proceeds evenly.
An estate’s executor or administrator has the highest type of relationship as a fiduciary and a legal obligation to act in the best interests of the beneficiaries.
They should remain impartial and never favor their own interests at the expense of the heirs and beneficiaries. They owe specific duties to the estate, including acting in good faith, collecting estate assets, paying estate taxes and debts, and preserving assets for the benefit of the beneficiaries.
If an executor or administrator is intentionally selling the real estate at a lower price than what is reasonable, it is a violation of their fiduciary duty. You can respond by requesting information about the property’s appraisal.
If you are in this situation, you also have two options:
Attempt to request information about the property’s appraisal and find out the reason behind the lower sale price.
The court can take certain steps, including removing the executor or administrator from their position.
These types of situations can be very complex, so we highly recommend asking a competent probate lawyer to represent you. They can help you ensure that the executor or administrator is acting in the best interests of the beneficiaries.
Ideally, selling the estate by a personal representative below market price should not happen. But if it does and their action results in financial loss, the court may hold them personally responsible, especially if they have exploited their position.
If the court finds that the executor or administrator violated their fiduciary duties, the court may remove them from their position. However, only a severe and damaging action by the personal representative can warrant removal.
Keep in mind that several factors can also influence the property’s value, and the executor may have valid reasons for selling it at a lower price. So, consult a probate attorney before acting on your assumptions.
Handling a loved one’s estate, especially if it’s your parent’s estate, can be a difficult and emotional process, especially when disagreements arise among family members. It is important to keep your emotions in check to prevent damaging relationships with your loved ones.
Consulting a probate lawyer can help you navigate the complexities of the probate process and protect your interests. Our experienced lawyers at GPLG Law Firm are available to assist you. Give us a call at (770) 796-4271 to schedule a consultation and receive the guidance you need to move forward with confidence.
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