When a loved one passes away and leaves behind a home, one of the first questions heirs ask is: “Can I live in the house while probate is pending?”
It’s a practical concern. California probate typically takes 9 to 18 months—sometimes longer if complications arise. During that time, the property sits in limbo, and heirs may need a place to live or want to protect the home from vacancy.
The short answer is: yes, heirs can sometimes live in a probate property, but it’s not automatic. The executor or administrator controls estate assets during probate, and their approval is required. There are also financial, legal, and practical considerations that every heir should understand before moving in.
Who Decides Whether an Heir Can Live in the Property?
The executor (if there’s a will) or administrator (if there’s no will) has legal authority over estate assets during probate. This includes real property. Until the court officially distributes the estate, the executor manages the home on behalf of all beneficiaries.
This means an heir cannot simply move into the property without the executor’s permission—even if they’re named in the will as the person who will eventually inherit the home.
The executor’s primary duty is to act in the best interest of the estate and all beneficiaries, not just one heir. If allowing someone to live in the property benefits the estate (for example, by providing security and maintenance), the executor may approve it. If it creates conflict or financial disadvantage, they may not.
Factors That Determine Whether an Heir Can Occupy the Home
Several factors influence whether living in a probate property makes sense:
The will’s instructions. If the decedent’s will specifically states that a particular heir should have the right to live in the home, that carries significant weight. Some wills grant a life estate or right of occupancy to a surviving spouse or child.
Agreement among beneficiaries. If multiple heirs stand to inherit the property, they all have an interest in how it’s used during probate. One heir moving in without the others’ consent can create conflict—especially if that heir isn’t paying rent while others wait for their share of the estate.
The estate’s financial needs. If the estate has debts, taxes, or ongoing expenses, the executor may need to rent the property at market rate or sell it to generate funds. An heir living there rent-free could actually harm the estate’s ability to pay its obligations. Understanding how debts are prioritized in California probate can help clarify why this matters.
Property maintenance. An occupied home is often better maintained than a vacant one. If an heir is willing to maintain the property, pay utilities, and keep it in good condition, the executor may view occupancy favorably.
Do Heirs Have to Pay Rent?
This is where things get complicated—and where disputes often arise.
If an heir lives in the probate property, the estate may be entitled to fair market rent. Why? Because the home is an estate asset, and any benefit derived from it should theoretically be shared among all beneficiaries.
Here’s how it typically works:
If you’re the sole beneficiary of the property, paying rent may not be required since you’ll inherit the home anyway. However, you should still get the executor’s written approval and document your agreement.
If there are multiple beneficiaries, the heir living in the home may need to pay fair market rent to the estate. This ensures the other beneficiaries aren’t disadvantaged. Alternatively, the rent owed can be deducted from that heir’s share of the inheritance at distribution.
If the will grants occupancy rights, the heir may be entitled to live there rent-free, depending on how the will is written.
The key is to get everything in writing. Verbal agreements can lead to disputes later—especially when significant money is at stake. This is one of the common mistakes heirs make during probate.
What About an Heir Who Was Already Living There?
A common scenario: an adult child was living with the deceased parent before they passed away. Can they continue living in the home during probate?
Generally, yes—but the same rules apply. The executor still has authority over the property, and the arrangement should be formalized. If the heir was paying rent before, they should continue. If they weren’t, the executor and other beneficiaries may expect them to start, or to have that value deducted from their inheritance share.
If the heir was providing caregiving services in exchange for housing, documentation of that arrangement becomes important. Without it, other beneficiaries may dispute the rent-free occupancy.
Insurance and Liability Considerations
One often-overlooked issue is insurance. Most homeowner’s insurance policies have specific requirements about occupancy, and a policy written for the deceased homeowner may not automatically cover an heir living there during probate.
The executor should:
- Notify the insurance company about the death and the probate status
- Confirm whether the current policy covers occupancy by an heir
- Update the policy if necessary to ensure adequate coverage
If the home is unoccupied for an extended period, standard homeowner’s insurance may not cover losses. Vacant home insurance may be required—and it’s typically more expensive.
An heir living in the property can actually help here, as occupied homes are generally easier and cheaper to insure than vacant ones.
Property Maintenance Responsibilities
If an heir is permitted to live in the probate property, they typically take on responsibility for basic maintenance:
- Paying utilities (gas, electric, water, trash)
- Routine upkeep (lawn care, cleaning, minor repairs)
- Reporting major issues to the executor promptly
- Keeping the property secure
Major repairs or improvements should not be undertaken without the executor’s approval, as these affect the estate’s finances. If the roof needs replacement or the plumbing fails, that’s an estate expense—not the heir’s personal responsibility (unless agreed otherwise).
What Happens When It’s Time to Sell?
If the estate plan calls for selling the property, or if the executor needs to sell it to pay debts and distribute proceeds, the heir living there will eventually need to move out.
This can create tension, especially if the heir has been living in the home for a year or more while probate drags on. Probate delays are common, and the longer an heir lives in the property, the harder it can be to transition out.
When the property is ready to sell, the heir should expect:
- Reasonable notice to vacate (typically 30-60 days)
- Cooperation with showings and inspections
- The property to be in marketable condition
If you’re an heir living in a probate property and anticipating a sale, start planning early. The probate property sale process can move quickly once the executor is ready, and you don’t want to be scrambling for housing at the last minute.
Can Living in the Property Affect Your Inheritance?
Yes, potentially. If you’re living rent-free while other beneficiaries wait for their share, the executor or the court may adjust distributions to account for the benefit you received.
For example, if fair market rent would have been $2,000 per month and you lived in the property for 12 months rent-free, the estate might deduct $24,000 from your inheritance share at final distribution.
This is why transparency and written agreements matter. If everyone understands and agrees to the arrangement upfront, there are fewer surprises—and fewer legal battles—at the end.
What If You Need Money While Living in the Property?
Even if you’re living in the inherited home, you may still face financial pressure during probate. Property taxes still come due. Utilities need to be paid. You might have your own bills piling up while you wait for your inheritance.
A probate advance from ProbateLend can help bridge the gap. You can access a portion of your expected inheritance now—without waiting for probate to close. There’s no credit check, no monthly payments, and no risk to you if the estate comes up short.
Whether you need funds to cover property expenses, pay your own bills, or prepare for a transition when the home sells, a probate advance gives you options during a difficult waiting period.
Tips for Heirs Considering Living in a Probate Property
If you’re thinking about occupying an inherited home during probate, here’s how to approach it the right way:
Talk to the executor first. Don’t assume you can move in. Get explicit permission and discuss the terms.
Get it in writing. Document whether you’ll pay rent, how much, and what maintenance responsibilities you’re taking on.
Communicate with other beneficiaries. If there are multiple heirs, make sure everyone is on the same page. Transparency prevents disputes.
Keep records. Save receipts for any expenses you pay (utilities, repairs, property taxes). These may be relevant at distribution time.
Plan for the exit. Probate will eventually end. Whether you’re buying out other heirs, the property is being sold, or you’re inheriting it outright, know what’s coming and prepare accordingly.
Consider your financial needs. If waiting for probate is creating hardship, explore options like a probate advance to access funds sooner.
The Bottom Line
Yes, heirs can often live in a house during California probate—but it requires the executor’s approval and careful attention to the rights of all beneficiaries. Rent obligations, insurance, maintenance, and eventual sale or distribution all need to be considered.
The best approach is open communication, written agreements, and a clear understanding of everyone’s expectations. Probate is stressful enough without adding housing disputes to the mix.
If you’re navigating a California probate and need financial flexibility while you wait, ProbateLend is here to help. Contact us to learn how a probate advance can give you access to your inheritance now—whether you’re living in the property or not.