Trusts and Estates

Ca. Trs. & Estates Quarterly 2017, Volume 23, Issue 3


By Julie R. Woods, Esq.*

An unwelcome occupant may refuse to relinquish possession of real property in a trust, conservatorship, or decedent’s estate. A child who cared for mom the last 10 years of her life may feel as though he or she has earned the house. A surviving spouse who has sentimental attachment to the house where she raised her children may want to pass it on to them, despite the estate’s insolvency. A millennial who, like 32% of his or her peers has moved home during the recession due to a combination of student-loan debt and inflated local rents, may have nowhere else to live.1 A former live-in caregiver whose employment has now terminated may have no income and nowhere else to live for free. Many excuses seemingly may entitle one to possession of real property.

The trustee, conservator, or personal representative then turns to her attorney for advice. The fiduciary, beneficiaries, and interested parties may pressure the attorney to remove the occupant. The occupant may have emotional attachments, financial incentives, or other reasons to possess the real property. The fiduciary may have an imminent need to repossess the house, secure the residence for sale, generate rental income, or prevent squatting or waste. To address these conflicting interests, the attorney must either step forward or bow out of the unfamiliar crossover with landlord-tenant law.

When the occupant refuses to leave, the attorney may first consider filing an unlawful detainer action. However, this approach might be a costly mistake. There are different requirements to oust various types of occupants. Part I of this article examines the three types of actions that can be filed to evict an occupant: an action for unlawful detainer, an action for ejectment, and an action under Probate Code section 850. Part II suggests framing the goals and issues with a six-step analysis to lead to the most desirable course of action. Part III recommends combining actions for ejectment with a petition under Probate Code section 850. Part IV discusses the pitfalls of filing a probate petition and civil complaint concurrently. Finally, Part V describes how the attorney can avoid giving incorrect advice that could lead to conflicts or even potential liability.

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