Probate disputes: Ongoing occupation of a deceased person’s home – what do you need to know?

It is becoming more common for disputes to arise in situations where a deceased person’s home continues to be occupied after their death.

This might be, for example, when an adult child who has lived with the deceased refuses to leave.

Whether you are the occupier, personal representative (an executor or administrator) or beneficiary of the estate in this situation, it is important to know where you stand and what action you should take. Doing nothing is rarely the best option.

With inheritance battles on the rise across the board, post-death occupation disputes can be particularly sensitive and difficult to navigate. Early legal advice is vital.

Can the occupier be forced to leave?

In family situations, it is rare for a formal agreement to be in place between the occupier and the deceased setting out the terms of occupation. In such situations, the occupier is likely to have been occupying the property under a ‘licence’.

A licence does not give an occupier any interest in the property, but it allows them to live there without being a trespasser. However, a licence granted by the deceased will usually end automatically on their death.

Even if the occupier is entitled to inherit some of the property, this does not mean that they will automatically be entitled to continue living in the property. However, this does not mean they can be evicted immediately:

• The occupier must first be given reasonable notice to leave the property, and what is reasonable will depend on the circumstances.
• If they do not leave the property once the reasonable notice period has passed, the personal representatives can take steps to evict the occupier.
• Any action should be approached with caution and only after taking legal advice.

Will the property need to be sold?

In most cases, it is usually possible for the occupier and the other beneficiaries to come to a mutually beneficial agreement without needing to go to court to resolve any dispute.

For example, the occupier may be able to ‘buy out’ the other beneficiaries’ shares of the property, but there is no ‘one size fits all’ resolution and the best approach will depend on the circumstances.

The personal representatives must act impartially between the beneficiaries and sometimes it may not be possible to reach an agreement, in which case the property may need to be sold.

If the occupier will not leave the property, possession proceedings may need to be issued to ensure it can be sold with vacant possession.

In some cases, the property will need to be sold regardless of any dispute, for example if the estate has debts and liabilities which can only be paid by selling the property and using the sale proceeds.

What should the personal representatives do?

The personal representatives are responsible for administering the estate and they must act in accordance with their duty of care and fiduciary (the management of any money) duties to the beneficiaries.

As a personal representative, you must be pro-active to ensure that you are not breaching your duties or causing a loss to the estate.

Personal representatives should consider whether they are entitled to charge the occupier for their period of occupation following the death of the deceased and take steps to formalise any terms of continued occupation whilst the dispute is being resolved.

If no steps are taken, it may become difficult later to assert any right to recover payments from the occupier for their occupation of the property, known as ‘mesne profits’.

Additionally, occupiers may sometimes allow the property to fall into disrepair to delay its sale by making it more unattractive to potential buyers. It is important to take prompt action to ensure that this does not devalue the property.

If a personal representative fails to preserve/and or maximize the value of the estate, it may result in the beneficiaries bringing a claim against them for breaching their duties and ‘wasting’ the assets of the estate.

As a beneficiary, what can I do if the personal representatives are not taking action?

Beneficiaries do not have any authority to deal with the estate. If the personal representatives are not taking the necessary steps to resolve the situation, this can cause problems and delays in the estate administration process which could potentially cause a loss to the value of the estate.

Depending on the circumstances, there may be various options open to beneficiaries facing these situations, such as making a Court application for an order against the personal representatives to take specific action, or in some cases to remove them as personal representatives if they are not fit to act.

What claims does an occupier have?

There are many reasons why an occupier may not want to leave the property. For example, they may not be able to afford alternative accommodation, or perhaps the deceased person promised them that the property was theirs.

If the occupier believes that the deceased has not reasonably provided for them on their death, the occupier may be able to bring a claim under the Inheritance (Provision for Family and Dependants) Act 1975 seeking an award from the estate, such as the right to live in the property for the rest of their life, or a greater share of the estate.

Where the occupier asserts that the deceased told them the property belonged to them, there may also be various claims to consider.

If the occupier brings forward a claim, the personal representative must remain neutral and not do anything which would prejudice their claim.

Get in touch

If you are involved in a dispute like this, contact our specialist Contentious Trusts and Probate team for help and advice.

Our lawyers are members of the Association of Contentious Trusts and Probate Specialists (ACTAPS), the Society of Trust and Estate Practitioners (STEP), the Association of Lifetime Lawyers (formerly Solicitors for the Elderly) and the Law Society’s Probate Panel. All demand a high level of expertise and up to date knowledge from their members.

Not only has Wards Solicitors been named as Bristol Law Society’s Regional Firm of the Year 2025 team, it is praised by the Legal 500 Guide for 2025 for its broad contentious trusts and probate practice with a particular emphasis on Inheritance Act claims.