Probate in CA takes a minimum of 6 months from the date the petition for probate is filed. The executor is the person that is in charge of the estate's property- they basically step into the shoes of the deceased, and act as their legal representative. If there is a written lease, the terms of that lease are controlling. If it is an oral lease, the court will look to the terms of the lease (as indicated by past events, for example) to determine the appropriate action.
Generally, when a long term tenant is still in tenancy, they are a tenancy at will. The landlord (or the executor, who is acting on his behalf) may not terminate the lease without giving notice. For long term tenancies, generally a 60 day notice must be provided. If the tenant does not vacate after that notice is provided, then the landlord must pursue "unlawful detainer" eviction. (notice requirements here: http://www.leginfo.ca.gov/cgi-bin/displaycode?section=civ&group=00001-01000&file=789-793)
However, if the tenant is in breach of the tenancy (ie non payment of rent), then the landlord may serve a 3 day notice to pay rent or quit:
You can use this notice when the tenant is behind on the rent. You don’t have to fill out this notice as soon as the rent is overdue. A lot of tenants are sometimes late with rent. Before you fill out this notice, contact the tenant. Find out if the rent is on its way. But, if you think the tenant won’t or can’t pay the rent, fill out the notice as soon as possible.
- Has to be in writing
- Has to have the title "Three Day Notice to Pay Rent or Quit"
- Has to say the name of the tenant
- Has to say the address you’re talking about
- Has to say exactly how much rent is overdue
- Has to say why that much rent is due and the dates the rent was due
- Has to give the tenant the chance to pay the rent or move out in 3 days
- Has to say that if the tenant doesn’t pay in 3 days, they’ll forfeit the lease.
- You have to sign and date the notice
Be very careful when you fill out the 3-Day Notice to Pay Rent or Quit.
The notice won’t be valid if you:
- Don’t say how much money is due,
- Ask for more money than what is due,
- Ask for rent that was due more than 1 year ago,
- Ask for something that’s not rent. This can be late charges, interest, utilities, property taxes, or damages,
- Tell the tenant to "pay rent and quit" (instead of "pay rent or quit"), or
- If you don’t let the tenant chose to forfeit the lease. This is called “election of forfeiture.”
Again, the executor has legal standing to pursue this in civil court, and actually has a fiduciary duty to the estate to ensure that the rental unit is being used in a productive manner (ie producing income for the estate).
If there is no written lease, then it is possible to negotiate the terms of the lease; if the landlord refuses to lower the rent, one would provide the required notice as set forth above (ie 30 days notice).
Also, any money expended on necessary repairs can be deducted from rent that is due. Repair and deduct strategy, along with other issues concerning repairs, are discussed at length here
Probate is a public record, so one can go to the court (probate department) to determine how far the case is. Probate will continue at least 4 months past the date the notice to creditors is provided so that can help determine the expected length of probate, along with viewing the assets listed in the inventory (complicated estates take longer).
Now, if the property is sold during the probate process, a written lease provides more protection to the tenant; otherwise the new owner may issue a 30 day notice to vacate to the current tenant, or raise rent, or take any new action as the new owner deems appropriate.
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Information provided is for educational purposes only. Consultation with a personal attorney is always recommended so your particular facts may be considered. Thank you and take care.