The “Probate” Homestead

Whether or not the Decedent’s home was a “homestead” is a critical consideration. In the case of a surviving spouse or surviving minor children, the impact on the estate can be significant. The surviving spouse and minor children have the right to occupy the homestead, regardless of whether the homestead was the Decedent’s separate property or the community property of the Decedent and the surviving spouse. The right to occupy has nothing to do with title in the home. This means that even if somebody else inherits the Decedent’s interest in the house, they inherit that interest subject to the spouse’s or children’s right to occupy. Even more, a surviving spouse’s right to occupy does not disappear if they remarry, although the minor child’s right terminates when they reach the age of majority.

The surviving spouse in this case, often called a “life tenant,” has specific rights and obligations. He or she is prohibited from committing waste, or otherwise allowing the property to fall into disrepair. The life tenant is obligated to protect the interest of remainder men (future owners) from being lost, and to do this the life tenant is required to:

  • Pay property taxes;
  • Reasonably maintain the property; and
  • Pay the interest portion on any mortgage payment for which the property is collateral for a loan.