How do we protect a home that is being rented from being taken over when the owner dies?

1 answer | Last updated: Jun 22, 2010
A fellow caregiver asked...

I'm trying to help my son with his father's estate. His father has a terminal illness and I will be taking care of him although I am his ex-wife of 23 years. My ex-husband owns a home valued at approximately $699,000 and he is currently under contract to a buyer who is having trouble getting financing. The buyer is currently residing at this home and paying my ex-husband rent. My question is: How does my son protect himself from these people stealing the house just because they are living there and renting when my husband dies? My husband also made his own will and I'm not sure it is a legal will.

Expert Answers

Liza Hanks is the founder and owner of FamilyWorks Estate Planning, a law firm with offices in Campbell and Los Altos, California, and the author of The Busy Family's Guide to Estate Planning (Nolo, 2007).

Your son should ask his father to sign a durable power of attorney, authorizing him to act on his father's behalf with respect to finances and property. This document should go into effect when signed, not upon his father's disability, since it sounds like he needs help managing his financial affairs right now.

This power of attorney will authorize your son to negotiate the sales contract and to terminate it if the buyers can't secure financing within a reasonable time, and to collect the rents due.

It also may be sensible for your son to have that will reviewed by an experienced estate planning attorney, who could also help draft that power of attorney, as soon as possible.

The will should name an executor to settle the estate. The executor's job is to manage and protect all the property in the estate after the death occurs. If the will names your son as executor, he can either continue to collect the rent due on the property or eject those tenants after his father's death. Unless there is a rare extenuating legal reason, they wouldn't have any legal right to remain in the house after your ex-husband's death.