Probate disputes: What happens when someone refuses to move out of a property after the legal owner dies?
As the number of people disputing a Will continues to rise, the ongoing occupation of a deceased person’s home after their death is inevitably becoming more common as a source of inheritance conflict.
With 68% of estate professionals naming blended families as the single biggest reason for dispute, as well as the rising value of estates and a growing public appetite for litigation, it is an issue more of us could face in the future.
Against this backdrop of more contested Wills, with an increase in those using a £3 caveat to block applications for probate, it’s important to know what to do if someone who lived with the deceased person refuses to move out of the property.
Whether you are the occupier, personal representative (either an executor or administrator) or beneficiary of the estate in this situation, doing nothing is rarely the best option and 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’.
This doesn’t give the occupier any interest in the property but allows them to live there without being a trespasser. However, a licence granted by the deceased will usually end automatically when they die.
Even if the occupier is entitled to inherit some of the property this doesn’t mean that they are automatically entitled to continue living there but it does mean they can’t 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 them.
- 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 living there after the death 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 you 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, they 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.
Wards Solicitors’ Contentious Trusts and Probate work is highlighted as a recommended practice area in the independent Legal 500 guide for 2026 which also highlights our outstanding professional service standards and high levels of legal expertise across the firm.
Specialist lawyer Emma Kerry is ranked as a ‘Next generation Partner’ with significant recognition from clients and peers in the market and key roles on multiple matters.