An estate must give a tenant reasonable written notice before showing a property, which most states define as 24 hours. The core problem is a direct legal conflict. The executor has a fiduciary duty to the estate to sell the property, but the tenant has a legal right to “quiet enjoyment,” protected by state laws like California Civil Code § 1954, which strictly limits a landlord’s right to enter.
This clash often traps well-meaning executors, who are frequently unaware they have become temporary landlords bound by complex laws. The average probate process involving real estate already takes between 9 and 18 months; conflicts with tenants can stretch this timeline even further, costing the estate thousands in delays and legal fees.
This article breaks down exactly what you need to know to navigate this process.
- ⚖️ Understand the Two Conflicting Roles. Learn why your duty as an executor clashes with your legal obligations as a temporary landlord.
- 📜 Master the Rules of Entry. Discover the specific notice you must provide—why, when, and how—to legally enter the tenant’s home for showings.
- 🚧 Navigate Difficult Scenarios. Get clear, actionable steps for handling uncooperative tenants, family members living in the home, and occupants with unclear legal rights.
- ✍️ Use a Step-by-Step Process. Follow a detailed guide for writing and delivering a legally sound “Notice to Enter” without making common, costly mistakes.
- ❓ Get Answers to Pressing Questions. Find quick, clear answers to the most frequently asked questions about selling an occupied probate property.
The Two Hats You Must Wear: Executor vs. Landlord
When you are appointed as the executor of an estate with a rental property, you instantly take on two separate and often conflicting jobs. First, you are the executor, a fiduciary responsible for managing and settling the deceased person’s affairs for the benefit of the heirs. Your primary goal is often to sell the property efficiently to pay debts and distribute the remaining money.
At the same time, you become the temporary landlord. The tenant’s lease does not become void just because the owner passed away; it remains a legally binding contract. This means you inherit all the landlord’s responsibilities, including property maintenance and, most importantly, respecting the tenant’s rights.
The central conflict arises here. Your duty as executor pushes you to sell the house quickly. Your duty as a landlord requires you to follow laws that protect the tenant’s privacy and right to live undisturbed.
The Tenant’s Shield: The Right to “Quiet Enjoyment”
Every tenant has a legal right to “quiet enjoyment” of their home. This is a legal term that means they have the right to live peacefully without unreasonable disturbances from the landlord. An executor cannot simply show up and demand to show the property to a potential buyer.
Entering a tenant’s home without their permission or without proper legal notice can be considered trespassing or even landlord harassment. This is true even if the tenant is behind on rent or has otherwise violated their lease. The law treats these as separate issues.
The 24-Hour Rule: Why Notice Isn’t Just a Courtesy, It’s the Law
To balance the executor’s need to sell with the tenant’s right to privacy, the law requires you to give formal notice before entering the property. This isn’t a suggestion; it is a strict legal requirement in most states.
What, Why, When, and How to Give Notice
What is “Reasonable Notice?” Most states define “reasonable notice” as a written notice delivered at least 24 hours before you plan to enter. This notice must be specific.
Why is Formal Notice Required? The notice is a legal safeguard. It proves you are respecting the tenant’s rights and acting in good faith. If a tenant ever claims you entered illegally, your written notice is your primary evidence that you followed the law.
When Can You Enter? Entry is almost always restricted to “normal business hours”. While this traditionally means Monday to Friday, 9 a.m. to 5 p.m., courts have recognized that for real estate showings, weekend afternoons are also considered reasonable. You cannot demand to show the property at 8 p.m. on a Tuesday unless the tenant agrees to it.
How Must You Deliver the Notice? The notice must be in writing. Accepted methods of delivery usually include :
- Handing it directly to the tenant.
- Leaving it with another adult at the property.
- Posting it on the front door where it can be easily seen.
While email or text might seem convenient, they are often not legally valid unless the tenant has previously agreed in writing to receive notices that way.
Not All States Are the Same: A Look at Local Notice Laws
While the 24-hour rule is a good general guideline, the exact laws vary by state. Failing to follow your state’s specific rules can invalidate your notice and lead to legal trouble. It is critical to know the law where the property is located.
For example, California has a special rule for property sales. If you first give the tenant a 120-day written notice that the property is for sale, you can then give oral (phone) notice 24 hours before each showing. An executor who doesn’t know this might waste time with written notices or act illegally by giving oral notice without the proper foundation.
Here is a comparison of notice laws in several key states:
| State | Notice Period | Key Details |
| California | 24 hours (presumed reasonable) | Written notice is standard. However, oral notice is allowed for showings if a 120-day written “for sale” notice was previously given. |
| New York | “Reasonable notice” (24 hours is customary) | The law isn’t specific, but courts and legal practice have established 24 hours’ written notice as the standard for non-emergencies. |
| Texas | Not specified in state law | The lease agreement is the controlling document. If the lease is silent, providing 24 hours’ written notice is the safest legal practice. |
| Florida | 24 hours for repairs | The law specifies 24 hours for repairs and “reasonable notice” for showings. Entry for repairs is limited to between 7:30 a.m. and 8:00 p.m.. |
| Illinois | No statewide statute | The terms of the written lease agreement dictate the notice requirements. If there is no lease, local ordinances may apply. |
Three Common Roadblocks and How to Navigate Them
Selling an occupied probate property is rarely straightforward. You may face resistance from tenants, complicated family dynamics, or unclear legal situations. Here are the three most common scenarios and how to handle them.
Scenario 1: The Uncooperative Tenant
You provide proper 24-hour written notice to show the home, but the tenant refuses to let you or the real estate agent in. They might ignore your calls, change the locks, or simply say “no.” This is a common and frustrating problem.
| Executor’s Move | Legal Outcome |
| Changes the locks or shuts off utilities. | This is an illegal “self-help” eviction. The estate will face a lawsuit, fines, and severe penalties, and you could be held personally liable. |
| Offers a “Cash for Keys” agreement. | This is a legal strategy where you offer the tenant money to voluntarily move out by a set date. It is often faster and cheaper than a formal eviction. |
| Starts a formal eviction process. | If the tenant’s refusal to allow reasonable access violates the lease, you can pursue a legal eviction. This process is slow, expensive, and adversarial. |
Scenario 2: The Family Member Occupant
Often, a family member—such as a sibling who is also an heir—is living in the inherited house. They may have strong emotional ties to the home and refuse to cooperate with a sale. This situation is legally very different from dealing with a standard tenant.
| Family’s Action | Resulting Situation |
| Other heirs demand the resident sibling leave. | The resident sibling refuses. As a part-owner of the property, they generally have a right to live there, creating a stalemate. |
| Executor tries to evict them like a tenant. | The eviction fails. A co-owner cannot be evicted using landlord-tenant law because they are not a tenant. They have ownership rights. |
| Heirs file a “partition lawsuit.” | This is the legal remedy to force the sale of co-owned property. A judge will almost always grant it, but the process is extremely expensive and can destroy family relationships. |
Scenario 3: The Occupant with Unclear Legal Status
You discover that the person living in the property is not on the lease. It might be the deceased’s partner, an adult child, or another relative who was living with them. You cannot assume they have no rights.
| Executor’s Assumption | Legal Reality |
| “They are just a guest and must leave immediately.” | In some areas, especially rent-controlled cities like New York, they may have “succession rights.” This allows them to legally take over the lease and become the new tenant. |
| “I can put the house on the market right away.” | The sale is frozen. You cannot sell the property until the occupant’s legal status is formally determined by a court or housing agency, which can add months or even years to the probate process. |
Executor Errors: 5 Costly Mistakes That Can Derail a Property Sale
As an executor, you have a fiduciary duty to protect the estate’s assets. A simple mistake can not only delay the sale but also expose you to personal liability. Here are five common and costly errors to avoid.
- Acting Before You Have Authority. You cannot legally act for the estate—including listing the property or giving notice to tenants—until the probate court has officially appointed you as the executor and issued “Letters Testamentary”. Any action taken before this is legally void.
- Ignoring the Tenant’s Lease. A common mistake is assuming the tenant’s lease is canceled upon the owner’s death. The lease remains a valid contract that the estate must honor. Ignoring its terms is a breach of contract and can lead to a lawsuit.
- Using “Self-Help” Evictions. Out of frustration with an uncooperative tenant, some executors resort to changing the locks, shutting off the water or electricity, or removing the tenant’s belongings. These actions are illegal in every state and carry severe financial penalties.
- Communicating Poorly (or Not at All). Failing to give the tenant a formal, written introduction or delivering improper notices creates confusion and mistrust. This almost always leads to an adversarial relationship where the tenant is more likely to refuse entry and challenge your actions.
- Mismanaging the Property. While you are dealing with the tenant, you cannot forget your duty to maintain the property. Allowing the home to fall into disrepair lowers its value and is a breach of your fiduciary duty to the beneficiaries, who can hold you personally responsible for the loss.
The Executor’s Playbook: Do’s and Don’ts for Showing Occupied Property
Navigating this process requires a clear strategy. Follow these do’s and don’ts to protect yourself and the estate.
| Do’s and Don’ts |
| ✅ DO get officially appointed by the court before taking any action. Why: You have no legal authority until the court says so. |
| ✅ DO introduce yourself to the tenant in writing with proof of your appointment. Why: It establishes your legal role and opens a formal line of communication. |
| ✅ DO document every single communication with the tenant in writing. Why: A paper trail is your best defense in any dispute. |
| ✅ DO learn the specific landlord-tenant laws for your state and city. Why: What’s legal in one state may be illegal in another. |
| ✅ DO consider offering a “Cash for Keys” agreement for a faster, smoother vacancy. Why: It is often a win-win that avoids a costly eviction battle. |
| ❌ DON’T enter the property without giving proper, written notice. Why: It is a violation of the tenant’s legal right to privacy. |
| ❌ DON’T change the locks, shut off utilities, or remove tenant belongings. Why: This is an illegal self-help eviction and carries heavy penalties. |
| ❌ DON’T assume a family member living in the home is a tenant. Why: As a co-owner, they have entirely different rights that you cannot ignore. |
| ❌ DON’T let property maintenance slide while you deal with the tenant. Why: You have a fiduciary duty to preserve the value of the estate’s assets. |
| ❌ DON’T use generic legal forms you find online. Why: They often fail to comply with state-specific laws and can be legally invalid, creating huge risks. |
“Cash for Keys”: A Strategic Exit or a Risky Payout?
“Cash for Keys” is a common strategy where you pay a tenant to move out. It can be a powerful tool, but it comes with its own set of pros and cons that you must weigh carefully.
| Pros and Cons of “Cash for Keys” |
| Pros |
| It is much faster than a formal eviction. An eviction can take months, while a Cash for Keys agreement can be completed in weeks. |
| It provides a definite move-out date. This certainty is valuable when trying to coordinate a sale. |
| The property is often left in better condition. Tenants who leave voluntarily are less likely to cause damage than those who are forcibly evicted. |
| It avoids costly legal fees. A contested eviction can cost the estate thousands of dollars in attorney and court fees. |
| It is less stressful and adversarial. It keeps the situation from escalating into a prolonged legal battle. |
| Cons |
| It requires upfront cash from the estate. If the estate has limited liquid funds, this may not be a viable option. |
| The tenant could take the money and not leave. To prevent this, the agreement must state that payment is only made after the tenant has vacated and the property is inspected. |
| The payment is taxable income for the tenant. This can have negative consequences for them, potentially affecting their eligibility for government benefits. |
| It can feel like rewarding a difficult tenant. However, it is often a pragmatic business decision to save the estate time and money. |
| You must avoid pressure or harassment. The offer must be voluntary. Coercing a tenant into an agreement could lead to a harassment lawsuit. |
Step-by-Step: How to Write and Deliver a Legally Sound “Notice to Enter”
The “Notice to Enter” is your most important tool. It must be done correctly to be legally valid. Using a generic template from the internet is a major risk, as these forms often miss key details required by state law and can be deemed invalid in court. Always have an attorney review your notice.
A proper notice must contain these essential elements :
- Tenant’s Full Name: Use the name exactly as it appears on the lease agreement.
- Full Property Address: Include the street address, city, state, zip code, and any unit number.
- Specific Reason for Entry: Be precise. Do not just say “for an inspection.” Instead, write, “To exhibit the dwelling unit to a prospective purchaser.”
- Date of Entry: List the full date (e.g., “October 17, 2025”).
- A Reasonable Time Window: State a specific and reasonable timeframe. For example, “between 2:00 PM and 4:00 PM.” Avoid vague terms like “in the afternoon.”
- Your Name and Title: Sign as “, Executor of the Estate of.”
- Your Contact Information: Provide a phone number or email where the tenant can reach you.
Once the notice is written, you must deliver it properly. The safest method is often certified mail with a return receipt, as it provides legal proof that the notice was sent and received. Alternatively, you can post it on the main entry door and take a time-stamped photo as evidence of delivery.
Frequently Asked Questions (FAQs)
- Can I change the locks on a property in probate to secure it? No. If the property is lawfully occupied by a tenant or family member, changing the locks is an illegal eviction. You can only change the locks after the property is legally vacated.
- Is the tenant’s lease still valid after the owner dies? Yes. The lease is a binding contract that the estate must honor. The executor steps into the role of the landlord until the property is sold or transferred to the heirs.
- Can the estate evict a tenant just to sell the house? No, not if they have a fixed-term lease. The new buyer would simply become the new landlord. For a month-to-month tenancy, you can give proper notice (usually 30 or 60 days) to terminate it.
- What if a family member is living in the house and won’t leave? You generally cannot evict them like a tenant because they are a co-owner. Your legal remedy is a partition lawsuit, which asks a court to force the sale of the property.
- Do I have to give a 24-hour notice for every single showing? Yes, unless your state has a specific exception. For example, California allows for oral notice for showings if a 120-day written notice of sale was previously provided to the tenant.