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Someone Is Living in the Home: What to Do
Understand occupancy rights, homestead protections, lease obligations, and access questions before taking action.
When someone other than the decedent is living in an estate home, the situation requires careful handling. Occupancy rights, homestead protections, lease obligations, and access questions must be understood before taking any action. This page identifies the questions that need answers before you change locks, demand departure, accept rent, or market the property.
Important Disclaimer:
Bill Ross is a licensed Texas real estate agent, not an attorney, CPA, or title professional. Occupancy issues involve legal questions about property rights, homestead, tenancy, and eviction that require professional guidance.
Do not take self-help measures without consulting an attorney. Changing locks, shutting off utilities, or removing an occupant without legal authority can create significant liability for the estate.
What to Address Now
Identify the occupants
Determine who is living in the home, their relationship to the decedent, and their claimed right to be there. Are they a spouse, an heir, a tenant, a squatter, or someone else? Do not assume you know the legal relationship without verification.
Locate any lease or occupancy agreement
If the occupant has a written lease, it generally survives the owner's death and must be honored by the estate. If there is no written agreement, determine whether an oral tenancy exists. Texas law recognizes oral leases under certain circumstances.
Understand homestead rights
A surviving spouse and minor children may have homestead rights under Texas law that affect the estate's ability to sell or evict. These rights are complex and must be addressed by the probate attorney before any action is taken regarding the property.
Document the property condition
Photograph the property's current condition. If the occupant is maintaining the home, document that. If they are not, document the deficiencies. A dated record protects the estate and helps inform decisions about property management.
Notify the insurer
Report the occupancy status to the insurance carrier. An occupied home and a vacant home have different coverage requirements. An occupant may create additional liability exposure that needs to be addressed through endorsements or a separate policy.
Ask counsel about access and possession
The personal representative has a duty to manage the estate, but the occupant may have legal rights to remain. An attorney can advise on the proper process for addressing occupancy, including requests for voluntary departure, rent agreements, or court proceedings.
Do not take self-help measures
Do not change locks, shut off utilities, dispose of personal property, or attempt to remove the occupant without legal authority. Self-help removal can create legal liability for the estate and may complicate or delay the probate process.
What Not to Assume or Do Yet
Do not assume you can change locks or remove someone without a court order.
Do not assume a family member has no rights because they are not on the deed.
Do not assume an oral agreement is unenforceable.
Do not accept rent from the occupant without understanding how it affects the legal relationship.
Questions to Ask the Probate Attorney
- What are the occupant's legal rights to remain in the home?
- Does the occupant have homestead rights, lease rights, or tenancy rights?
- What process is required to address the occupancy?
- Can the estate collect rent from the occupant?
- What happens if the occupant refuses to leave?
Property and Sale-Planning Work
The occupancy status affects the property's marketability, the sale timeline, and the buyer pool. A buyer with their own financing may need the property vacant at closing. An investor or cash buyer may accept a tenant-in-place arrangement. A real-estate professional can help you understand how occupancy affects the sale strategy and what options are realistic for your situation.
Bill Ross helps families plan estate sales that account for occupancy and access realities. This does not create a legal obligation to sell or a binding listing relationship.
Decisions Likely to Come Next
Whether to negotiate a voluntary departure
A voluntary agreement is faster and less expensive than formal eviction.
Whether to pursue formal eviction proceedings
Requires court authority and legal representation.
How to handle the property during the occupancy
Maintenance, insurance, and access arrangements must continue.
Whether the occupant has a claim to purchase the property
Tenants or heirs may have rights that affect the sale process.
Related Guides and Resources
The Homeowner Just Died
First steps after a Texas homeowner passes away
I Have Letters Testamentary
What to do after receiving court authority
The Heirs Disagree
Navigating family disputes over an estate property
Author: Bill Ross, Hill Country Homesteads Group. This content is educational and does not constitute legal, tax, or title advice. Consult a qualified Texas probate attorney, a licensed title company, and a CPA or enrolled agent before making decisions about estate property.
Bill Ross is a licensed Texas real estate agent (License #778434) and Certified Probate Expert serving Boerne, Fair Oaks Ranch, San Antonio, and the surrounding Hill Country communities. Hill Country Homesteads Group, brokered by KW Boerne. Information current as of July 19, 2026.