Father passed away, I live in his house, his out of state lady friend wants to move in

[Mike-Hill]

Jurisdiction

California

Hi all
Not sure if this is the right place for this question.

My father passed two days ago. He retired to another state (AZ) and let me live in the house in CA. His lady friend who lives out of state is the executor of his will, and along with my sister and I will get a share of the proceeds when the house sell. She wants to come out here and move into the house while it is on the market ( major gold digger, another story) None of the family can stand her, very dishonest and manipulative. Does she have a right to move in?

Thank you.

 

[adjusterjack]

Condolences on the death of your father.

As executor she has a lot of rights and a lot of power and, yes, theoretically, she can put you out and move in while she is getting the house ready for sale and puts it on the market.

However, she is not the executor and has no power until the probate court acknowledges that she is the executor and issues her papers which allow her to act for the estate.

Your father retired to Arizona so he must have assets in Arizona. That means she would have to open probate in Arizona to get her papers.

Check the probate court in the Arizona county where he lived and see if a probate case has been opened. If yes, order a complete copy of the file so you can have his will and her papers.

She will also have to open an ancillary probate in California in the county probate court where the property is located. Check that probate court, too, and get the file.

And while you are at it, get a copy of the deed to the house from the county recorder (or whatever agency holds land records).

If it turns out that she has all her filings done and has her authorization papers from the courts I guess you can count on being put out of the house very soon so I suggest you start preparing for it by finding another place to live and get all your belongings and records out of there because if she gets a court order you'll be put out without notice.

If she doesn't have her court papers, you are welcome to just say no to her and if she shows up without papers, don't let her in, call the police.

Oh, one more thing, if she hasn't opened probate in CA (or AZ for that matter), you have the option of doing so yourself, under intestacy (no will) and handle the sale of the estate yourself.

 

[Mike-Hill]

Condolences on the death of your father.

As executor she has a lot of rights and a lot of power and, yes, theoretically, she can put you out and move in while she is getting the house ready for sale and puts it on the market.

However, she is not the executor and has no power until the probate court acknowledges that she is the executor and issues her papers which allow her to act for the estate.

Your father retired to Arizona so he must have assets in Arizona. That means she would have to open probate in Arizona to get her papers.

Check the probate court in the Arizona county where he lived and see if a probate case has been opened. If yes, order a complete copy of the file so you can have his will and her papers.

She will also have to open an ancillary probate in California in the county probate court where the property is located. Check that probate court, too, and get the file.

And while you are at it, get a copy of the deed to the house from the county recorder (or whatever agency holds land records).

If it turns out that she has all her filings done and has her authorization papers from the courts I guess you can count on being put out of the house very soon so I suggest you start preparing for it by finding another place to live and get all your belongings and records out of there because if she gets a court order you'll be put out without notice.

If she doesn't have her court papers, you are welcome to just say no to her and if she shows up without papers, don't let her in, call the police.

Oh, one more thing, if she hasn't opened probate in CA, you have the option of doing so yourself, under intestacy (no will) and handle the sale of the house yourself.

 

[Mike-Hill]

Thank you so much for your response. I do know that she has power of attorney and his estate was set up as a revocable trust.......he really didn't understand any of that so left everything up to his lady friend..... I guess I am at her mercy.

Thanks again for taking the time to respond, adjusterjack.

Best regards,
Mike

 

[army judge]

Thank you so much for your response. I do know that she has power of attorney and his estate was set up as a revocable trust.......he really didn't understand any of that so left everything up to his lady friend..... I guess I am at her mercy.

Thanks again for taking the time to respond, adjusterjack.

Best regards,
Mike

You might want to talk this over with a couple trust attorneys.

You appear to be a beneficiary to the trust, not just proceeds of a home sale.

Depending on what's at stake for you, dropping a couple large for an attorney is the only way to protect what was supposed to be yours.

 

[Mike-Hill]

You might want to talk this over with a couple trust attorneys.

You appear to be a beneficiary to the trust, not just proceeds of a home sale.

Depending on what's at stake for you, dropping a couple large for an attorney is the only way to protect what was supposed to be yours.

Okay, will do....thanks again, very much appreciated : )

 

[adjusterjack]

I do know that she has power of attorney and his estate was set up as a revocable trust

I wish you had said that at the get go. Would have saved me a lot of time.

1 - Power of attorney died with your Dad.

2 - However, a revocable living trust is a private contract that does not go through probate so you can forget everything I said about probate court papers.

3 - She is not an executor, she is a trustee and could very well have the power to put you out and take residence so that part of my comment is still good. You need to prepare for that eventuality.

4 - Under the laws of both states you, as beneficiary of the trust, have the right to know the terms of the trust. Ask her for a copy of the trust documents. If she won't give it to you hire a lawyer.

5 - I still suggest you get a copy of the deed to the house to see if it is owned by the trust or owned by your father. If he erred and did not deed the house to the trust when he created the trust, you are back to having to probate it.

 

[zddoodah]

His lady friend who lives out of state is the executor of his will

No, she's not. When someone makes a will (that person is called the testator), it is common for the testator to nominate another person to serve as executor of the testator's estate. The nominated executor does not actually become executor of the estate until and unless he/she is appointed as such by a court of competent jurisdiction.

I assume what you mean is that your father's will nominates his girlfriend to be executor of his estate.

Does she have a right to move in?

The right? No. Nor does she have the authority (at least not until a court appoints her as executor of the estate). However, I'm guessing you don't have any sort of written lease. If that's correct, then you have very little ability to prevent her from moving in. Also, as soon as she is appointed as executor of your father's estate, she'll be able to evict you.

I do know that she has power of attorney

The authority conferred by a power of attorney dies with the principal.

his estate was set up as a revocable trust.

Depending on exactly what this means, your father's will might be largely irrelevant. Do you have a copy of the trust instrument? Is his girlfriend the trustee of the trust?

I agree that you need to confer with a local attorney. Folks who haven't read the will or the trust aren't going to be of much help to you.

She is not an executor, she is a trustee

Obviously, we have no way of knowing this. She could be a nominated executor (as noted above, it's too soon for her actually to be executor); she could be a trustee; she could be both.

 

[mightymoose]

In case it has not been clear- you do not have to move out of the house until a court orders you out. As long as you occupy the residence you can prevent her from moving in.

I would be very concerned that she could remove you, take over the residence, and not sell it.
It is also possible your father's will has conditions that allow for you to remain in the home and prevent it from being sold as long as you occupy it. It is in your best interest to obtain copies as suggested above.

 

[army judge]

I guess I am at her mercy.

No, mate, you are only at her mercy if you believe her story.

Trust, but verify.

Talk to a probate or trust attorney about this.

The initial consultation will not cost you one thin dime.

You'll have about 20-30 minutes to ask questions, solicit options, and find out what you can do.

As you were told, her POA died the moment your father passed away.

She is NOT the executor until a probate filing is opened and the court appoints her executor.

There are options, many options, and @zddoodah laid them out rather well for you.

Please, don't give up, you aren't defeated unless you surrender.