Selling an Inherited Estate, but Family Member Refuses to Leave. What Do I Do?

with Will Punivalu, Principal at Whyte, Just & Moore 

Some people assume that if a family member has lived in a house for years, they’ve earned the right to stay there once the owner has passed away. That’s not necessarily the case. 

Living in a property, even for a long time, doesn’t give someone legal ownership of it, and it doesn’t stop an executor or co-owner from taking steps to get it back.

This situation comes up more often than people expect, and there’s a clear process to resolve it.

Can you evict a family member who isn’t a tenant?

Yes. If someone is living in a property without a lease and without paying rent, they are not a tenant, and the residential tenancy process does not apply. 

Instead, the owner or executor can apply to the Supreme Court or County Court for a possession order under the rules that deal with the recovery of land. This is a summary procedure, meaning it is designed to move more quickly than standard litigation.

Can a family member refuse to leave an estate property?

Not without a valid legal basis. This might mean the will specifically gives them the right to continue living there, or they have paid money toward the purchase or renovation of the property.

Being a beneficiary of a will, or simply living there for a long time, does not give someone the right to live in the property indefinitely, or to block a sale the executor is required to carry out.

Examples of refusal to leave an estate

Here are a few scenarios where this comes up, including some we’ve seen at Whyte, Just & Moore:

• An adult child cares for an ageing parent, then stays in the house after the parent dies, even though the will requires it to be sold
• A de facto partner not named in the will stays in the house, arguing the relationship gives them a right to remain
• An executor needs to sell the family home, but a grandchild or other relative living there won’t move out
• Siblings inherit a house jointly, one stays on and blocks a sale or won’t let the other move in
• A long-term occupant, such as a friend or carer, claims they were promised the right to stay after the owner’s death

Recovering possession of the estate, step by step

Start with a conversation

Many situations resolve without needing to go further than a direct conversation.

If a conversation doesn’t resolve things, or the person refuses to engage, it’s a sign to seek legal advice.

Letter of demand

This is the first legal step. A letter of demand:

• sets out clearly that the person has no right to remain,
• gives a timeframe to leave, usually somewhere between two and eight weeks, depending on the circumstances
• and outlines that legal costs may follow if the matter proceeds.

If they won’t leave: court application

If the person does not leave, the next step is issuing court proceedings under the civil procedure rules of either the Supreme Court or the County Court.

A possession order is the court’s confirmation that the applicant is legally entitled to the property. It allows them to take further steps if the occupant won’t leave.

Because it is a ‘summary procedure’, the process is much quicker than most other legal proceedings. It typically takes around three months from filing to a possession order being made.

If they still won’t leave: warrant and sheriff involvement

If the order is not complied with voluntarily, the final steps involve applying for a warrant of possession and arranging for the sheriff to attend the property. 

The sheriff’s office generally allows around 60 days from receiving the warrant to carry out the eviction, during which welfare checks are made on the occupant.

Most matters resolve well before it reaches this point. Once a person understands there is a genuine legal process behind the letter of demand, they usually leave rather than face court costs on top of the inevitable outcome of moving out.

What if the person claims they’re a tenant or have a financial stake?

This is where things can get more complicated. 

If the occupant can show they were paying rent, even informally, the matter may fall under residential tenancy law and need to go through the Victorian Civil and Administrative Tribunal instead. 

Similarly, if they claim a financial interest in the property, for example by arguing they contributed money towards purchase and renovations, the court cannot resolve that through the summary process. It requires a more detailed hearing to determine the facts.

Who pays for the legal costs?

Legal costs are a common concern. Courts often award costs of the application to the successful party, but recovering that money from the other side is a separate issue. 

If the person being asked to leave has limited means, a costs order may be difficult to enforce. 

Owners and executors should go in with realistic expectations. It may turn out that they have to foot the bill. 

Frequently asked questions

Can I call the police to remove a family member from my property?
Generally no. Police can act if someone is trespassing and has never had permission to be there, or if there’s violence or a threat to safety. Family members, co-owners, or beneficiaries who were living there with permission fall outside that, which is why the court process exists.

Does the court have to grant a possession order just because I apply for it?
Granting a possession order is at the court’s discretion. In a straightforward case, it’s usually granted, but the court can decline or delay it, particularly if the occupant has a genuine legal claim or a vulnerable person has nowhere else to go.

What if the person living there has nowhere else to go?
The court can still take this into account, and may allow additional time before requiring someone to vacate, even where the applicant is otherwise entitled to possession.

Can a caveat stop me from selling or removing someone from the property?
A caveat lodged on the title can delay a sale until it’s removed, and is sometimes used by an occupant to strengthen their position. If there’s no genuine legal basis behind it, it can usually be challenged and removed.

Do I need a lawyer to apply for a possession order?
It’s not a strict legal requirement, but we recommend talking to a lawyer. The process involves court forms, affidavits, and strict procedural rules. Getting it wrong can add delay and complications.

You don’t have to work through this alone

These matters often involve family. They can be stressful, and they require compassion. Getting advice early, rather than after months of leniency have passed, generally makes the process shorter and less difficult.

At Whyte, Just & Moore, we’ve acted for executors, co-owners, and families across Geelong in many disputes just like this, including matters that have proceeded all the way through to a sheriff-led possession.

Get in touch with Whyte, Just & Moore

If you’re an executor, property owner, or co-owner dealing with a family member who won’t leave an estate property, we can help. 

Contact Whyte, Just & Moore to talk through your options.

See more about disputes relating to wills, estates, trusts and superannuation.

This article is general information only and does not constitute legal advice. Please contact Whyte, Just & Moore for advice specific to your circumstances.