Dear Counselor: There comes a time to move on

By Preston Morgan

Question: My father passed away about a year ago, leaving all of his property in a living trust to my sister and me. I am the trustee. He lived in a fairly large house outside the Bay Area.

My sister moved in with him several years ago out of necessity when she lost her job. She looked after him and helped him out. In the last year of his life, my dad required a lot of care, and my sister took care of him full-time. She took good care of him, and I am grateful to her for that. Since his death, she promised to help clean up and organize the house, presumably to put it up for sale. But she hasn’t done much at all.

I have spent trust funds on repair and maintenance for what seems to be turning into “her” place. I would like to put the house up for sale. We recently had a conversation about selling the house, but she complained about the price of real estate, saying she couldn’t afford anything. I know that with the proceeds of the house she could easily rent somewhere, but it would be a step down from her current living situation.

I am not looking to kick her out, but if she refuses to budge, what are my options? At some point, can I evict her and sell the house even though she supposedly owns one-half of it?

Answer: There’s no place like home, but now that your father has passed, your sister needs to find another place to call her own. It is not easy doing what she did – taking care of an aging parent – and her doing it well deserves respect. But her care for your father shouldn’t translate into free housing for life. Your father wanted the two of you to share equally in his gift, and she needs to respect that wish.

As the trustee of your father’s living trust, you are the legal title holder and control the property. You will have to carefully read the trust and any amendments to ensure that you are following its terms. Unless the trust does not allow you to do so, you have the right to take possession of the house, but your sister’s current legal status as a tenant, licensee, or occupant should be carefully considered before you act.

Her legal status may determine what remedies you employ. If your sister is a “tenant,” you can remove her from the property by filing an “unlawful detainer” lawsuit. A “tenant” has an agreement to possession of the property, which can arise from something as simple as her paying some small amount of rent or even agreeing to do some work in exchange for living there. A careful analysis of the facts is required here to determine whether she is a tenant or not.

The unlawful detainer proceeding is an accelerated proceeding, and you can regain possession of the property quickly. However, it involves strict adherence to technical statutes, including appropriate notice. Failure to comply with the statutes can lead to complications with the lawsuit and delay.

If your sister is not a “tenant,” then she may be a “licensee” or an “occupant” of the property. You have different remedies for removing a licensee or an occupant. One is to bring a civil lawsuit for “ejectment,” and the other is to petition the probate court for “recovery” of the property. Although these two proceedings may be longer than an unlawful detainer proceeding, the penalties can be harsher. In the probate court, for example, the court even has the ability to double any damages and charge them against your sister’s share of the trust.

Although you have legal options to remove her from the house, you may want to consider a strategy that seeks to preserve your relationship. The two of you should meet with a mediator to explore some ways to resolve the issue. Perhaps the two of you can reach an agreement that gives her some time to live at the house while she finds a new place, but requires that she pay fair market rent to the trust or that her portion of any trust funds be charged.

Since your father’s passing, she has treated the property as her home without having to come out-of-pocket for anything. It’s possible that once she associates living at the house with an actual cost, she might then decide to downsize her living situation and find another place, a place that she can truly call her own.— Preston Morgan