Legal Question in Real Estate Law in California

When people die without a will, or an effective will substitute like a living trust, their property passes according to rules set forth in the Probate Code. If both members of a married couple die intestate, one preceding the other, very likely the children will inherit all their property, and their debts, in equal shares. Other outcomes are possible, but somewhat unusual.

Also, in most cases when people die with significant property or debts, and no trust, a legal process called "probate" is required. The purpose of probate is to "probe" into ownership questions in court, and have a judge determine whether there were a will or not, who may be the executor or other person qualified to wind up the deceased person's affairs, transfer ownership of property to the correct heirs, and otherwise apply the law to the assets and liabilities involved.

If the parents' estates have not gone through probate, that may be necessary in order for anyone to assert any rights here. Most likely, you and your brother (and any other living siblings) own this house equally, but so long as there has been no probate (and there is no trust), the matter is subject to sufficient doubt that you probably would have diffuculty asserting any rights.

Furthermore, unless someone pays the mortgage, the lender will eventually foreclose, and a stranger (or the lender itself) will end up owning the property and doing the kicking out for you.

The next piece of bad news is that, if your brother and you turn out to be co-owners of the property in question, that means you each have a co-existing right to occupy the entire property. You are, in a very real sense, roommates as a matter of law. He has a right (when he is not a guest at the Graybar Hilton) to occupy every square inch of the property. You too have the exact same right. So does any other person, such as a third sibling, who has also inherited a partial interest.

As a co-owner, your brother can rent out his right of occupancy to a tenant, or, I suppose, invite in guests to share his right of occupancy for free. You continue to have your right of occupancy, but are obliged to share it with the others. Further, if they won't let you move in and share, you can't force yourself upon them; the law doesn't allow self-help in a right-to-co-possession squabble. Your best bet would be to give notice under the involuntary ouster provisions of the Civil Code, section 843.

You may need to get any probate issues handled first. Also, since you are probably not "on title" you should record a Request for Notice of Default with the County Recorder, which will get you on the mailing list for foreclosure-related filings. See Civil Code section 2924b. Make sure there is no notice of default recorded already; a lender's duty to give notices under 2924b does not require it to look for later-filed requests for notice.

If you need to put the property through probate, step one is to find an attorney that handles probate matters. Then ask him or her for some advice on the guests. Show him or her a copy of this answer.