What If One Heir Is Living in the Inherited House and Won't Sell?

If the house is still in the estate, New Jersey law generally gives the executor or administrator, not the heir living there, the power to manage and sell it, unless the will or a court order says otherwise. If the heirs already own it together, a sale can still happen through a buyout, an agreement or, as a last resort, a partition case in court, and the estate's attorney decides which route fits.

I'm Dennis Mark Interdonato with The Dennis Mark Group at Keller Williams Realty Ocean Living. This is one of the hardest estate situations in Monmouth and Ocean County, because it's rarely about the house. Here's what the law says, and how I'd handle the house side.

Who controls an inherited house while the estate is open?

The executor named in the will, or the administrator the Surrogate appoints when there's no will. New Jersey's fiduciary powers statute says that, unless the will, the appointment or a later court order limits them, every fiduciary has the power to take possession of and manage estate real property, collect rents, pay taxes and mortgage interest, keep it insured, make repairs to preserve it or make it saleable, and sell it at public or private sale (N.J.S.A. 3B:14-23).

There's an important exception in that same statute: those powers over real property don't apply where the will specifically leaves the property to someone. If the will leaves the house to the heir who lives there, it's a different conversation, and the attorney leads it.

What if the heirs already own the house together?

Once the house is deeded out of the estate to more than one heir, they usually own it as tenants in common, each with an individual share, according to the Ocean County Surrogate's planning guide. When co-owners can't agree, the court path is a partition action.

For many inherited houses, New Jersey's Uniform Partition of Heirs Property Act (P.L.2025, c.88) now applies to partition cases filed on or after its effective date. Under it, a licensed appraiser sets the value, the owners who don't want a sale get the chance to buy out the ones who do, and if the court orders a sale, the default is an open-market sale through a licensed New Jersey broker at no less than the determined value. Whether the act applies is the attorney's call.

Disputes over an estate go to the Superior Court, Chancery Division, Probate Part, according to the Monmouth County Surrogate's guide. A court case adds time and cost for everyone, so it's worth trying every other option first.

Can you make someone leave an inherited house?

Not on your own. Don't change the locks or move someone's belongings out yourself. New Jersey's Truth in Renting guide from the Department of Community Affairs says a landlord may recover possession of a home only with the occupant's consent or through the legal process of eviction. An heir isn't necessarily a tenant, so the estate's attorney decides what process applies, if it comes to that.

What options usually work better than court?

1. A buyout. If the heir in the house wants to keep it, they can buy the others' shares at a fair value. My article on buying out a sibling's share walks through it.
2. A written arrangement to stay for a while. The fiduciary powers statute lets an executor or administrator lease estate property for up to three years. An agreement for the heir to stay and cover the carrying costs until a set date is one option the attorney can put in writing.
3. A sale with a move-out plan. A closing date that gives the heir time, plus an estate sale and clean-out handled for them.
4. One number for everyone. A lot of these standoffs are about value. A market evaluation every heir sees at the same time takes the guessing out of it. Start with my home value tool.

How do you sell a house with an heir still living in it?

Carefully, and in writing. Here's how I'd run the house side once the attorney confirms who can sign:

• Agree on access. A showing schedule the heir signs off on, with notice before every visit.
• Agree on condition. What gets cleaned, repaired or stored before photos, and who pays. I spent years building and remodeling New Jersey homes, so I'll tell you which repairs pay and which ones a buyer won't pay for.
• Agree on the date. The closing date and the move-out date, side by side.
• Same update for everyone. The executor and every heir, including the one in the house, get the same written update at each step.

The Estate & Probate Guide covers the full sale, and you can see how I handle estate homes.

Frequently Asked Questions

Can an executor sell the house if an heir lives there?

New Jersey's fiduciary powers statute gives an executor the power to take possession of and sell estate real property unless the will, the appointment or a court order limits it, or the will leaves the house to a specific person. The attorney confirms what applies.

Does the heir living there have to pay rent?

That's for the executor and the attorney to decide. The statute lets an executor collect rents and lease estate property for up to three years.

What is a partition action?

A court case that divides or sells property owned in common. For many inherited houses, New Jersey's heirs property act now gives co-owners a chance to buy out the owner asking for a sale.

How long does it take to resolve?

It depends on whether the family agrees. An agreement can move as fast as a normal sale. A court case takes longer.

This is general information, not legal, tax or lending advice. Talk with the estate's attorney before taking any step that affects someone living in the house.

About the author

Dennis Mark Interdonato is a REALTOR® and Master CDRE® who leads The Dennis Mark Group at Keller Williams Realty Ocean Living in Point Pleasant, NJ, helping buyers and sellers throughout New Jersey make their next move, with Monmouth and Ocean County as home base. Read more about Dennis Mark.

Keep reading

• Do all heirs have to agree to sell an inherited house?
• Estate sale or clean-out first?
• The Estate & Probate Guide
• Have a question this didn't answer? Send it to Dennis Mark.