Living in a Deceased Parent's Home: Occupation Rent Claims Among Siblings

Many families face this: a parent dies, one adult child already lives in the house or moves in, and the others start to wonder whether that sibling should be paying rent or covering costs while the estate is open.

This question can be emotional, and the answer depends on the facts. This article explains who controls the home, what tools exist when siblings disagree, and how to approach the conversation, without assuming a fixed rule.

Whose house is it while the estate is open?

A deceased person's property devolves to and becomes vested in the personal representative, as trustee for those beneficially entitled. So the home is not automatically the property of the child who lives there, and it is not shared informally among the siblings either. The estate trustee holds it for the people entitled under the will or, if there is no will, under the law.

The estate trustee is responsible for paying taxes, bills and other debts. Who bears the ongoing costs of the home while it is held, such as property tax, utilities and insurance, depends on your situation, so it is worth confirming with a lawyer.

Can the other siblings demand rent?

People often ask whether a sibling who has the use of a shared house should compensate the others for it. Whether such a claim succeeds in an estate depends on the facts of your situation. Those questions are worth putting to a lawyer before anyone sends a demand.

On the flip side, a sibling who has paid for repairs, taxes or insurance may want credit for those payments. Again, the outcome depends on the evidence. Receipts, messages and any written agreement make a real difference.

• Did the sibling live in the home before the parent died?
• Did the sibling care for the parent, and was there any understanding about it?
• Who has been paying property tax, utilities, insurance and repairs?
• Has the estate trustee agreed to the arrangement in writing?
• How long is the estate expected to stay open?

Who decides, and how are disputes handled?

The estate trustee makes the day-to-day decisions, but with limits. A sale of the home only to distribute the estate is not valid against a non-concurring beneficiary unless beneficiaries with at least one-half of the interests approve. Conveying or dividing the estate requires the concurrence of adult beneficiaries, plus approval of the Children's Lawyer or Public Guardian and Trustee where minors or incapable persons are involved.

If a beneficiary thinks the estate trustee is handling things badly, including by letting one sibling stay on unfavourable terms, there is a formal route. The estate trustee applies to pass accounts, and a person with a financial interest may file a notice of objection. If no objection is filed, or all are withdrawn, the trustee can obtain judgment without a hearing. Filing a notice of objection to the accounts is not commencing a claim under the Limitations Act, 2002, so the two-year limitation period does not bar it.

Where a minor is a beneficiary, the Office of the Children's Lawyer must be served on an application to pass accounts.

Risks for the estate trustee and for the sibling in the house

If the estate trustee is also the sibling living in the house, there is a conflict of interest to manage carefully. A trustee who takes compensation without approval risks a reduced award and repayment to the estate. A court may relieve a trustee from personal liability for a breach of trust if the trustee acted honestly and reasonably and ought fairly to be excused, but a trustee should not plan on that.

There are also time pressures. Real property not disposed of or distributed within three years of death vests in the persons beneficially entitled, unless a caution is registered. A lingering arrangement should not be allowed to drift without a plan.

What to do next

Most disputes like this are easier to settle early, in writing, than after months of resentment. A short written agreement signed by the beneficiaries can set out who pays which costs, how long the arrangement lasts and what happens when the house is sold.

• Confirm who the estate trustee is and whether a certificate has been obtained.
• Gather receipts for taxes, utilities, insurance and repairs since the date of death.
• Write down what each sibling understands the arrangement to be.
• Ask the estate trustee for a written plan and timeline for the house.
• Do not demand or withhold payment until you have had legal advice on your facts.
• If a dependant (for example a spouse or child) is not provided for, ask about support claims, which have a time limit running from the grant of probate.

Frequently asked questions