Often times executors or administrators of a probate estate ask if they have the authority to file an unlawful detainer for a property owned by the Estate. The Executor of a probate estate has the authority to file an unlawful detainer even if the person being evicted is a beneficiary under a will or an heir of the estate.

An executor who files an unlawful detainer is generally doing so for one of two reasons: (1) to evict a family member living in a property owned by the Estate or (2) to evict a tenant living in a property owned by the Estate. In either situation, the general rules of an unlawful detainer found in the Code of Civil Procedure apply. If the person being evicted is a tenant, it is important for the executor to find any leases or other documents applicable to the tenancy that may apply.

Generally, a family member who lives in the “family home” and does not pay rent would still be required to receive notice — generally a Thirty or Sixty Day Notice to Quit. If the family member had agreed to pay rent and fails to do so, then the family member can be evicted using a Three Day Notice to Pay Rent or Quit. An Executor can even evict someone who ultimately would be a beneficiary or heir under the Estate.

Unlawful detainers should in a probate matter should be filed sooner than later because they can take several months to process. If an Executor is looking to sell real property that is occupied, it is generally a good idea to commence the unlawful detainer prior to accepting offers (although it depends on every situation).

If you are looking to commence an unlawful detainer, please contact Attorney Anthony Marinaccio at 818-839-5220 to begin the process.