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socrateaser, Attorney
Category: Estate Law
Satisfied Customers: 38878
Experience:  Retired (mostly)
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Ms and Happy New Year to you. My question is if an adult

Customer Question

Hello Ms Wilson and Happy New Year to you. My question is if an adult child is living in the home of a surviving parent and not a trustee of the irrevocable family trust what recourse do the trustees have in removing the person from the home after Mom passes? I thank you for your response in advance.
JA: Estate laws vary by state. What state are you in?
Customer: New York
JA: What documents or supporting evidence do you have?
Customer: Of? Trust agreement? Will? Yes to both. Something else?
JA: Anything else you want the lawyer to know before I connect you?
Customer: If the adult Son not a trustee but is a beneficiary what kinds of problems may we encounter in dealing with my Brother to get him to vacate the premises once my our Mother passes? The both the Will an the Trust documents stipulate the home is the sold and proceeds distributed to heirs.
Submitted: 6 months ago.
Category: Estate Law
Expert:  socrateaser replied 6 months ago.


The son is a "holdover" in a "tenancy at will" -- in effect, a guest of his mother (who I presume is entitled to retain possession of the property during her lifetime). A tenancy at will may be terminated at any time, for any reason or for no reason at all. Consequently, when the mother passes, the trustee can serve notice of termination of tenancy on the son, and if he refuses to vacate the premises, then the trustee can sue to remove the son as a holdover from the tenancy at will.

Note: I am somewhat trivializing this procedure. Holdover tenancy actions can become difficult, because without a written lease, it's difficult for the court to ascertain the facts of the case. Ideally, if the trustee can get the mother and son to sign a lease, now -- even if the rental amount is $1.00 per month, that would make things much easier in the future.

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Expert:  socrateaser replied 6 months ago.

Hello again,

Do you have a follow-up question or are we good to go? Please reply. Thanks!