How doI get family members to leave my house?

UPDATED: Jan 4, 2011

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How doI get family members to leave my house?

My mother died in 09 without a will but I was to inherit her home. My dad, her ex, and his wife moved in to help me with the bills but they have expected me to pay everything. How do I get them out the house?

Asked on January 4, 2011 under Estate Planning, South Carolina


M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 12 years ago | Contributor

First of all, regardless of what your mother promised you, the laws of the state where that she was domiciled in at the time of her death will control.  This is because your mother died without a Will (i.e. "intestate").  This means that her estate will be divided according to state intestacy laws.  Typically, this means that the estate will be divided among a surviving spouse, if any, and the deceased's children.  However, since your mother and father were already divorced at the time of her death, he has no legal standing to inherit.  This means that you (and your siblings, if any) would inherit your mother's estate, including the home.

A family member who is occupying your home may be considered a tenant regardless of whether a lease was signed or rent was paid.  In most jurisdictions the law provides that if the occupant paid for things like utilities or food, the payment of these expenses can be considered “rent”. Accordingly, some state laws will treat them as a “tenant”. To remove them from the premises a formal eviction proceeding (“unlawful detainer action”) will need to be filed as in any other landlord-tenant relationship.

If no form of rent has been paid (which appears to be your situation) many states permit the owner to simply ask the friend to leave and remove their belongings without any legal proceedings. However, in other states, someone who enters a home and stays with permission will be classified as a “licensee”. This status grants the occupant more rights than a general “guest.” To revoke the permission to remain on the property, a formal eviction will be needed.

Before suit can be filed, however, the occupant must first be served with a notice to vacate (or “notice to quit”) the premises. This is a more formal way of asking the person to leave the home. In some states this notice can be for a little as 3 days prior, in others as much as 30 days. Additionally, each state has its own rules regarding how and when to serve the notice. Be sure to follow all legally required steps. If the occupant fails to leave by the requested date, an action for eviction can be filed. The judge will issue an order of eviction and a writ of possession (or your state’s equivalent). The order will usually set a vacate date. If the occupant still refuses to leave in violation of the order, law enforcement can then be called. They will remove the occupant, using physical force if necessary.

At this point you need to consult with a probate attorney, to make sure that you have legal title to the house; and you also need to speak with a landlord-tenant attorney as to the eviction.

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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