Can a beneficiary live in an estate property rent-free during probate?

Often the Deceased may not have sought rent from the beneficiary, which whilst agreeable during their life, can cause issues post-death when the Deceased’s Will may then leave their property to additional beneficiaries, such as their other children.

The executors of the Deceased’s Will may face issues in selling the property, particularly when the occupying beneficiary refuses to leave, or attempts to uphold the rent-free arrangement had with the Deceased.

As the property becomes an asset of the estate post-death, the estate gains an entitlement to benefit from it. The executors, or remaining beneficiaries, can seek Occupation Rent from the occupying beneficiary.

Occupation Rent is usually calculated on the basis of the achievable market rent over the property per calendar month and can be multiplied by the number of months that the occupying beneficiary has been in occupation post-death.

Importantly, however, a right to Occupation Rent is not automatic. If a claim was brought to recover Occupation Rent, the court will assess the overall circumstances, including: –

• Whether the remaining beneficiaries have agreed to, or tolerated the occupation;

• Whether the occupying beneficiary has paid towards mortgage instalments, insurance, utilise or property maintenance costs;

• Whether the occupying beneficiary has delayed or obstructed the sale of the property; and

• Any other reasons why the administration of the estate is not complete.

Often, when determining what, if any, Occupation Rent is payable, any expenses met by the occupying beneficiary are offset against the sum due.

Alongside a claim for Occupation Rent, executors of beneficiaries may also wish to seek an order for possession of the property in order that it may be sold and its proceeds realised.

Many Occupation Rent disputes are solved via negotiation or at mediation. Taking early advice can ensure that delays in distributing the estate are minimised and legal costs kept proportionate to the sum of the Occupation Rent sought.

 

 

William Cook

Associate Solicitor