A Caffeine Law look at one of the most common flashpoints in California estates: the executor or trustee who moves into the family home and lives there for free while the estate is open - and what the other heirs can do about it. This is general information, not a comment on any specific case.

Ava asked her husband, attorney Michael Benavides, to explain what happens when the person in charge of an estate lives in estate property rent-free.

Ava: The executor moved into mom's house and stayed for years while the estate was open. Is that allowed?

Michael, Esq.: An executor, administrator, or trustee sometimes needs access to a property to secure and maintain it - that part is normal. What is not normal is treating estate property as a free personal residence for years. A fiduciary holds that house for everyone who inherits, not for themselves. Under California Probate Code section 9650, the personal representative is entitled to take possession of estate real property and to collect its rents, issues, and profits - but those rents and profits belong to the estate, to be distributed to all the beneficiaries. When the fiduciary lives there for free, the estate is quietly losing the rent it should have been earning, and one heir is getting a benefit the others are not.

Ava: They say they lived there to "protect" the property. Doesn't that count for something?

Michael, Esq.: Preserving a property is legitimate - paying the taxes, keeping insurance in force, preventing the home from falling into disrepair or foreclosure all benefit the estate, and a fiduciary can be reimbursed for reasonable, necessary expenses that genuinely preserve the asset. But "I protected it" and "I lived in it for free" are two different things. Occupying the home as a personal residence is a personal benefit, not an act of preservation. A fiduciary who takes a personal benefit from estate property is stepping on the duty of loyalty, and California law treats that seriously.

Ava: So can the estate actually charge them rent for the time they lived there?

Michael, Esq.: Often, yes - it is usually framed as a "rental value" credit or a surcharge. The reasoning is straightforward: the estate was entitled to the rents and profits of that property (section 9650), and instead one fiduciary consumed that value personally. Probate Code section 9601 says that when a personal representative breaches a fiduciary duty, they are chargeable with any loss to the estate and any profit they made through the breach, with interest. Living rent-free in an asset that belonged to everyone is exactly the kind of personal profit a court can order repaid to the estate so it can be shared correctly. For trusts, the same idea runs through the trustee's duty of loyalty and the remedies for breach.

Ava: How is the "rent" figured if no one was actually paying rent?

Michael, Esq.: By fair rental value - what the property would have rented for on the open market during the months the fiduciary occupied it. That is typically shown with comparable rentals, and sometimes an appraiser or real-estate professional. If a home would have rented for, say, a couple thousand dollars a month, and the fiduciary lived there for years, the accumulated fair rental value can be a very large number - which is precisely why it matters. The court can then credit that amount back to the estate before the money is divided.

Ava: The executor says they paid the mortgage and taxes, so it's a wash. Is it?

Michael, Esq.: Not automatically. The right approach is to look at both sides honestly. On one side, the estate is credited the fair rental value of the free occupancy. On the other side, the fiduciary may be entitled to reimbursement for the reasonable, necessary carrying costs that actually preserved the asset - property taxes, insurance, and payments that protected the equity. But be careful: paying the mortgage on a home you are living in for free is largely paying for your own housing. And expenses that mainly benefited the occupant - not the estate - do not simply cancel out the rent. A court weighs the genuine preservation costs against the rental value; it is not a reflexive "wash."

Ava: Does it matter that the other heir was never offered the chance to live there or share the benefit?

Michael, Esq.: It can matter a great deal. Where one heir has exclusive use of a co-owned property and the others are shut out, the excluded owners are generally entitled to their share of the property's rental value. Combine that with the fiduciary duty a personal representative or trustee owes to all the beneficiaries equally, and a one-sided arrangement - one person enjoys the house for years, the others get nothing - is the type of imbalance courts are designed to correct.

Ava: What if the fiduciary never disclosed to the court, or even to their own probate attorney, that they were living in the home?

Michael, Esq.: Non-disclosure makes it worse, not better. A fiduciary has a duty of candor to the court and to the beneficiaries. If the occupancy was hidden - left out of the accounting, not mentioned at the hearings - that concealment is itself evidence a court will want to hear about, and it strengthens the argument for a full accounting and a surcharge. The remedy is to bring the true facts to the court's attention before anything is finalized, with a simple declaration and, if needed, discovery.

Ava: Bottom line?

Michael, Esq.: A fiduciary is not entitled to live in the estate's property for free at everyone else's expense. California law lets the estate recover the fair rental value of that occupancy, offset by genuine, documented preservation costs - and a fiduciary who took a personal benefit or hid it can be surcharged with interest. If someone in charge of an estate or trust has been living in the property while you wait for your share, the numbers are worth running before any final distribution is approved.

How Caffeine Law / Michael Benavides Legal Can Help

If an executor, administrator, or trustee has been living in estate property while you are being told there is little left for you, we can review the accounting, calculate the rental-value credit, and petition the court for transparency before the estate is closed. Call or text 707-362-4166 for a free, confidential review.

Caffeine Law - Michael Benavides Legal | Michael Benavides, Esq., CA Bar No. 270714 | Sacramento, Stockton & Modesto | call/text 707-362-4166 | attorneymichaelbenavides.com

Attorney advertising. Ava is an editorial brand voice, not an attorney; only Michael Benavides, Esq. (CA Bar No. 270714) provides legal analysis. General legal information, not legal advice, and no attorney-client relationship is created by reading this. California probate and trust rules - including a fiduciary's right to reimbursement, the estate's right to rents and profits (Prob. Code sec. 9650), and surcharge for breach of duty (Prob. Code sec. 9601) - are fact-specific and may change; confirm current law and consult an attorney about your situation. Outcomes vary by facts and jurisdiction.