When a parent passes away, their home and other properties enter a legal limbo during the probate process. Can you continue to use, live in or maintain these properties while probate is ongoing? The answer depends on several legal considerations that affect your rights and responsibilities as an heir or executor.
The executor’s authority
Immediately upon your parent’s death, the law views all their assets as belonging to a separate entity: the estate. The court-appointed executor, also called the personal representative, steps into a crucial legal role.
Texas law requires the executor to take possession of all property and hold it in trust for distribution. They must protect the assets, pay debts and ensure the estate’s value remains high for all beneficiaries and creditors.
This means even if you are the sole heir, the property is not technically yours until the probate process is complete and the court issues an order of distribution.
Real estate and the homestead right
The family’s homestead, the primary residence, often presents the biggest question mark for adult children. A minor child or a surviving spouse has an immediate right to live there, regardless of what the will says.
If you are an adult child who was not living there before your parent’s death, the executor must officially grant you permission to use the property. Without this consent, you could violate the executor’s fiduciary duty to preserve the asset. The executor may even charge you rent to cover ongoing estate expenses and ensure fairness to other heirs.
Personal property and unauthorized use
The same rules apply to personal belongings, such as vehicles, investment properties and business assets. The executor controls these assets and decides on appropriate use during probate. Using these assets without proper authorization could result in claims against you for damages or misuse.
Seeking clear legal authority is key
Any use of estate property before the final distribution requires transparent communication and formal approval from the executor. If the will does not name an independent executor with broad powers, the executor may need to get approval from the probate court for certain actions, including allowing a beneficiary to occupy the home. Taking possession early may create unnecessary conflict and expose both you and the executor to legal risks.
