Can You Evict Tenants During Probate?

The probate process restricts an executor's ability to remove tenants; ownership doesn't transfer until the court validates the estate, so the executor cannot simply issue a standard eviction notice. Most jurisdictions require a formal court order - often from probate or landlord‑tenant court - after the appropriate notice period has elapsed.

Notice length and required paperwork hinge on state law and whether the tenant holds a month‑to‑month or lease‑backed agreement; some states demand 60 days, others accept 30. Securing the court order clears the path for eviction, which the next section will detail step‑by‑step. State probate court requirements

• Myth: 'Probate automatically freezes all tenant rights, so the executor can evict without any notice.' Reality: Tenants retain ordinary protections; the executor must serve the required notice and then file an unlawful‑detainer action to obtain a writ of possession before removing anyone (self‑help evictions are generally prohibited).
• Myth: 'A 30‑day notice works for every lease once probate starts.' Reality: Notice periods differ by jurisdiction and lease type; some states require 30 days for any termination, others mandate longer periods for yearly leases or for holdover tenants.
• Myth: 'If the tenant doesn't contest the notice, the court never gets involved.' Reality: Even unchallenged notices compel the executor to pursue a formal eviction lawsuit; a court order is still needed to enforce possession of the probate property.
• Myth: 'Month‑to‑month tenants lose their rights the moment probate opens.' Reality: Their right to a proper notice remains intact; the executor cannot simply change the lock or shut off utilities without following eviction procedures.
• Myth: 'Holding a lease guarantees the tenant stays until probate ends.' Reality: A valid lease does not bar eviction; the executor may terminate the lease with appropriate notice and court approval, though the process may be longer for long‑term leases.

The probate executor can start an eviction by following a short, state‑specific sequence.

1. Confirm authority - obtain the letters testamentary, record them at the county recorder, and ensure the probate property title reflects the executor's name.
2. Inspect the lease - identify whether the tenant occupies on a month‑to‑month basis (requires a 30‑day notice) or under a fixed‑term lease (cannot be ended by notice alone; must wait for natural expiration or prove a breach such as non‑payment).
3. Issue the proper notice - use the statutory notice form, list the executor's contact information and the probate case number, and deliver it according to state rules (personal service, certified mail, or posting).
4. File a petition for possession - attach the letters testamentary, a copy of the lease, and proof of notice; request the court's order to regain possession if the tenant does not vacate voluntarily.
5. Present at the hearing - show the executor's legal title, the lease status, and any breach evidence; the judge may issue a writ of restitution.
6. Enforce the writ - coordinate with the sheriff or marshal to remove holdover tenants; record the eviction with the probate court to close the property file.

(Next, see how a valid lease changes the executor's options.)

A lease that's still active when the estate goes into probate stays in force; the probate executor inherits the landlord's obligations and the probate property stays subject to the tenant's rights. Eviction is only possible for a statutory cause - non‑payment, material breach, or the lease's natural expiration - and must follow the state's notice periods, typically 30 to 60 days. As we covered above, the executor cannot simply terminate a valid lease to speed up a sale.

• Verify the lease's term, rent amount, and any renewal clauses before taking action.
• Confirm whether the tenant has breached the agreement; only then prepare a proper notice according to local law.
• If the lease is month‑to‑month, serve the required 30‑day termination notice; longer leases demand the lease‑end date or a proven cause.
• Document all communications and notices in the probate record to protect the executor from future disputes.
• Consider negotiating a buyout or early surrender; a mutually agreeable exit avoids court and keeps the probate timeline on track.
• Consult a probate‑estate attorney if the tenant refuses to vacate after proper notice, especially when the estate faces tight deadlines.

A probate executor can evict month‑to‑month tenants by delivering the statutory termination notice and, if the tenant refuses to leave, pursuing an unlawful‑detainer suit.

First, determine the required notice period - most states mandate 30 days, but some require 15, 45, or even 60 days depending on local law and the tenancy's length. Serve the notice in person, by certified mail, or via a licensed process server; ensure the tenant signs the receipt or keep the mailing proof.

Second, log the notice in the estate's records; filing the notice with the probate court isn't a universal requirement, though some jurisdictions may ask for a copy when the executor seeks court approval to liquidate the property. If the tenant remains after the notice expires, file the detainer action in the appropriate civil court and let the probate court's involvement stay limited to estate approvals, as discussed earlier in the eviction‑initiation steps.

Probate executors typically see eviction timelines stretch from a few weeks to several months after the estate opens, because probate itself can run six to eighteen months and every step hinges on state rules. First, the executor must serve the required notice - most states demand thirty days for month‑to‑month tenants, while lease‑hold tenants often receive thirty days but some jurisdictions permit sixty days (see state‑specific eviction notice periods). After notice, the executor files a summary eviction action; courts may schedule a hearing anywhere from two weeks to three months later, depending on local docket congestion. Once a judgment is issued, sheriffs generally enforce the order within five to ten business days, though delays are possible in rural counties. Adding the probate administration period, the whole eviction can conclude anywhere between one and nine months after the executor initiates the process, with longer waits in states that require extended notice or have overloaded courts, as we noted in the steps‑to‑initiate‑eviction section.

A probate executor can often secure a tenant's departure through negotiation, avoiding the time and expense of court.

Negotiation works best when the executor respects the tenant's rights, offers something of value, and follows state‑specific notice rules. Clear communication and written agreements keep the process enforceable.

• Review the lease or month‑to‑month tenancy to determine required notice (typically 30‑60 days, may vary by state).
• Propose a cash‑for‑keys deal that covers moving costs, a few months' rent, or a security‑deposit refund.
• Draft a written release that obligates the tenant to vacate by a mutually agreed date and waives future claims.
• Include a clause allowing the executor to reclaim the probate property if the tenant stays past the deadline.
• Keep copies of all offers, acceptances, and the signed release; email trails or certified‑mail receipts provide evidence if litigation later becomes necessary.
• If the tenant rejects the proposal, proceed with the formal eviction steps outlined earlier.

When heirs also live in the probate property, the same diplomatic tactics apply - turn to the next section for handling family‑heir tenants in probate disputes.

Heir‑tenants rarely fall under ordinary landlord‑tenant rules; the probate executor must first obtain a probate court order before removing an heir who's living in the probate property. Most states require a formal petition, a hearing, and a notice period that may differ from the typical 30‑ or 60‑day notice for month‑to‑month tenants. Attempting a standard eviction action without court approval can be deemed unlawful and delay the estate settlement (as we covered above in the 'steps to initiate eviction' section).

Conversely, many executors resolve heir occupancy through negotiation rather than litigation. Offering a buy‑out, temporary rent‑free use, or relocation assistance often persuades the family member to vacate without a court order, preserving relationships and shortening the probate timeline. Mediation can sidestep the formal notice requirements and reduce the risk of a holdover tenant dispute later (setting the stage for the upcoming 'when to call a lawyer' discussion).

Probate executor should dial a lawyer the moment any of the following red flags appear: the will is disputed, more than one heir claims interest in the probate property, the tenant holds a rent‑controlled or protected lease, the estate includes out‑of‑state assets, or the court has issued a stay that affects notice periods.

Complex notice calculations - 30‑day for month-to‑month tenants versus 60‑day for lease‑hold occupants - also trigger professional help, as does a tenant's claim of right of survivorship or a pending lawsuit alleging wrongful eviction. When probate timelines (often 6‑18 months) clash with the statutory eviction period, a misstep can expose the executor to personal liability.

At any sign of these complications, retaining counsel to draft pleadings, negotiate exit agreements, and verify compliance with local statutes (see state probate eviction guide) safeguards the estate and streamlines the path to addressing holdover tenants after probate closes.

After probate closes, the executor handles holdover tenants the same way a regular landlord would.

A holdover tenant is someone who remains in a probate property after the lease expires or after the executor issues a move‑out notice. The executor must first serve a written notice that meets the state's required notice period - typically 30 days for month‑to‑month tenants, but some jurisdictions demand 60 days. If the tenant stays past that deadline, the executor files an unlawful detainer action in the appropriate court. Once a judgment is entered, the court can order eviction and may award back rent, damages, or costs, depending on local law.

Executors should keep copies of all notices, receipts, and court filings to protect the probate estate.

For example, an executor in Ohio received a 30‑day notice from a month‑to‑month tenant who refused to leave after the probate court approved the estate sale. The executor filed a detainer, obtained a judgment, and the sheriff removed the tenant two weeks later, allowing the buyer to take possession unencumbered. In contrast, a California executor faced a 60‑day notice requirement, meaning the eviction process stretched an additional month before the property could be transferred.