Sibling Living in a Deceased Parent's House and Refusing to Leave: Your Options in New York

In many New York families the house is the estate. The parents owned a home in Brooklyn, Queens, or on Long Island, paid it off, and left little else. One child stayed in that house, often because that child was the one caring for the parent. When the surviving parent dies, the other children expect the house to be sold and the proceeds divided. The sibling in the house has other ideas and will not move out.

The remedy you have depends on one question before any other: who holds title to the house right now, and who has legal authority over it? Until that is answered, nobody can say whether the path runs through Surrogate's Court, Housing Court, or a partition action in Supreme Court. This page walks through each procedural posture, names the court and the statute that applies, and gives realistic timelines and cost drivers for New York City and the surrounding counties. For the mechanics of a partition suit itself, see our page on partition of real property, and for negotiating a sibling buyout, see buyout of an inherited residence.

Start here: has title passed out of your parent's name?

Under New York law, real property does not sit in limbo after death. If there is a will, the house passes to the devisees named in it. If there is no will, it passes to the distributees under EPTL 4-1.1, which for a widowed parent means the children in equal shares. Title vests at the moment of death, but it vests subject to the powers of the executor or administrator. EPTL 11-1.1(b)(5) gives the fiduciary the power to take possession of estate real property, collect rents, manage it, and sell it, except where the will specifically devises the property to a named person.

In practice, the deed usually stays in the parent's name for months or years. Check the deed records (ACRIS for the five boroughs, the county clerk elsewhere) and the Surrogate's Court file in the county where your parent lived. Those two records tell you which of the five situations below you are in.

Situation 1: No estate has been opened

If no one has been appointed executor or administrator, no one has standing to remove your sibling. A sibling who is not a fiduciary cannot serve a notice to quit, cannot file an eviction petition, and cannot sign a contract of sale. The first step is to get letters issued.

• Will exists: the named executor petitions for probate and letters testamentary. See letters testamentary.
• No will: a distributee petitions for letters of administration under SCPA 1001. Children have equal priority. If two siblings compete for letters and cannot agree, the court may appoint one of them, both of them, or in a hostile case the Public Administrator. See letters of administration.

The occupying sibling can petition for letters too, and often does. Living in the house is not by itself a ground of ineligibility under SCPA 707. If you object to that sibling serving, you need facts that fit SCPA 707 or 711, such as dishonesty, substance dependence, or a demonstrated conflict that would prevent fair administration.

Timeline and cost: an uncontested petition for letters in New York County, Kings, or Queens generally takes two to six months from filing to issuance. Filing fees are set by SCPA 2402 and scale with the estate's gross value, from $45 for very small estates to $1,250 for estates of $500,000 or more. A contested petition for letters can take a year or longer.

While you wait, do not change the locks and do not remove your sibling's belongings. Document the condition of the house, keep records of any carrying costs you pay, and send written notice that you expect the house to be sold and that you reserve your claim for use and occupancy. For who may enter the house during this period, see access to a house after death.

Situation 2: Your sibling is the executor or administrator and lives in the house

A fiduciary owes undivided loyalty to all beneficiaries. A fiduciary who occupies estate property rent-free while delaying the sale is using estate assets for personal benefit. Surrogate's Court has several tools for this.

• Compel an accounting (SCPA 2205): any beneficiary may petition to force the fiduciary to account. The accounting will have to disclose how the house has been handled and whether the fiduciary charged himself or herself for occupancy.
• Compel information or action (SCPA 2102): a beneficiary may petition to compel the fiduciary to supply information about the estate or to deliver specific property.
• Removal (SCPA 711 and 719): SCPA 711(2) permits revocation of letters where the fiduciary has wasted or improperly applied estate assets or has otherwise improvidently managed or injured estate property. SCPA 719 allows the court to act without a petition in listed circumstances. Courts treat removal as a serious remedy and reserve it for misconduct that endangers the estate. A fiduciary who pays the taxes, insures the property, and is actively marketing it will usually survive a removal petition. One who has sat in the house for three years with no listing and no accounting is at risk. See removal of an administrator or executor.
• Surcharge: in the accounting, the court may charge the fiduciary with the fair rental value of the occupancy and with any loss in sale price caused by delay.
• Compel disposition (SCPA 1901 and 1902): where the house must be sold to pay debts, expenses, or to distribute shares to the persons entitled, an interested party may petition the court for a decree directing its disposition.

Timeline and cost: a compulsory accounting petition is heard within a few months, but the accounting itself and any objections to it can take a year or more. Removal petitions move faster when the facts are documented. Surrogate's Court filing fees for these petitions are modest; the cost is in attorney time, which depends on how hard your sibling fights. For the accounting process generally, see estate accountings.

Situation 3: Someone else is the fiduciary and your sibling, who is not, won't leave

Here the fiduciary has authority and your sibling does not. Whether the fiduciary is a third sibling, a bank, or the Public Administrator, the analysis is the same. The fiduciary's power to take possession under EPTL 11-1.1(b)(5)(A) is the starting point, with one qualification: if the will specifically devises the house to named children, the executor's general power over it is limited to what administration requires, such as selling to pay debts under SCPA 1902.

The occupant is usually a licensee, not a tenant

A child who lived in the parent's house with the parent's permission and paid no rent is a licensee. The license came from the parent and did not survive the parent's death, and the fiduciary may in any event revoke it. The correct proceeding is a summary holdover under RPAPL 713(7), which covers a licensee whose license has expired or been revoked. RPAPL 713 requires a ten-day notice to quit, served under RPAPL 735, before the petition is filed. The fiduciary has standing under RPAPL 721(11) as the legal representative of the person entitled to possession.

The original version of this page said the fiduciary must first demand rent. That is wrong for a licensee. A rent demand belongs to a nonpayment proceeding under RPAPL 711(2), which requires a landlord-tenant relationship. Demanding rent, and especially accepting it, invites the argument that the fiduciary created a month-to-month tenancy. A tenancy can only be ended with a termination notice under RPL 226-c, which requires 30, 60, or 90 days depending on how long the occupant has been there, and it gives the occupant tenant defenses. If the fiduciary wants money for the occupancy, the better course is to reserve a use-and-occupancy claim against the sibling's share in the accounting rather than to collect rent.

When the occupant is also a distributee or devisee

There is a complication that the simpler articles on this subject skip. If your sibling is one of the children who inherit the house, title vested in that sibling at death, subject to the fiduciary's powers. Some Housing Court judges have questioned whether a person with a vested ownership interest can be treated as a licensee of the estate. The fiduciary's answer is EPTL 11-1.1(b)(5) and, where applicable, the will's power of sale. Where the court is not persuaded, the fiduciary can seek a Surrogate's Court decree under SCPA 1901 directing the sale and the delivery of possession, or bring an ejectment action under RPAPL Article 6 in Supreme Court. Expect a contested sibling occupant to raise this issue, and plan for it before serving the notice to quit.

Timeline and cost in New York City

A licensee holdover in Housing Court (Civil Court outside the five boroughs is District Court, City Court, or Justice Court depending on the county) takes several months from petition to judgment if the occupant appears and contests. The petition filing fee is $45. After judgment, RPAPL 753 permits a court in New York City to stay the warrant for up to one year on the occupant's application, and judges often grant some stay to a family member with nowhere to go. Add marshal's fees and the time to schedule the marshal. A realistic range for a contested matter is six to eighteen months from notice to vacancy.

If the fiduciary refuses to act, the remedies in Situation 2 apply: compel an accounting, compel action under SCPA 2102, or seek removal. See also resolving beneficiary and executor conflict.

Situation 4: Title has already passed to the siblings as tenants in common

Once the fiduciary deeds the house to the children, or once the estate is closed and the children's title is recorded, your sibling is a co-owner. Every tenant in common has the right to possess the whole property. Under Jemzura v. Jemzura, 36 N.Y.2d 496 (1975), a cotenant in sole possession owes no rent to the others unless the cotenant has ousted them, meaning excluded them from the property. You cannot evict a co-owner in Housing Court. The remedy is partition.

Partition under RPAPL Article 9

RPAPL 901 permits any tenant in common to bring an action in Supreme Court to partition the property, and to sell it if a physical division cannot be made without great prejudice. A house in Flatbush or Jamaica cannot be split into equal lots, so these cases end in sale unless the siblings settle.

The Uniform Partition of Heirs Property Act, RPAPL 993

New York adopted the UPHPA effective December 6, 2019, and it changed how sibling partition cases run. Property is heirs property when there is no written agreement among the cotenants governing partition, at least one cotenant acquired title from a relative, and a sufficient share of the interests (generally 20 percent) is held by relatives or by people who took from a relative. A house inherited by siblings from a parent qualifies almost every time. Once the court determines that RPAPL 993 applies, the case follows a sequence that the pre-2019 law did not require:

1. Appraisal: unless all cotenants agree on a value, the court appoints a disinterested licensed appraiser and sets fair market value after the parties have a chance to object.
2. Cotenant buyout right: the cotenants who did not request a sale may elect to buy the interest of the cotenant who did, at the court-determined value, within 45 days of the notice of value, and then have 60 days to pay. If your occupying sibling has the means, this is where the case may end, with your sibling owning the house and you receiving your share in cash.
3. Partition in kind or by sale: if no buyout occurs, the court considers whether division in kind is feasible, which for a single-family house it is not, and then orders a sale.
4. Open-market sale: the sale is conducted by a licensed broker at a court-approved listing price, not at a courthouse auction, unless the court finds an auction or sealed bids would be more economically advantageous. The point of the statute is to keep inherited homes from being sold at distressed prices.

Courts in Kings and Queens routinely hold a settlement conference early in an heirs property case. That conference is the natural place to agree on an appraiser, a buyout price, or a move-out date.

Use and occupancy, carrying costs, and the partition accounting

Partition ends with an accounting among the cotenants before proceeds are divided. RPAPL 1201 lets a cotenant recover from another cotenant who has received more than a just proportion. The rules that matter in a sibling case are these:

• A cotenant who paid property taxes, mortgage installments, insurance, and necessary repairs is generally credited for the other cotenants' share of those payments.
• A cotenant who had exclusive possession is not charged for use and occupancy absent ouster. Ouster can be shown by a refusal to allow the other cotenants to use the property, a lock change, or an unequivocal written demand for possession that is refused.
• Many courts offset the two: a sibling who seeks credit for carrying costs while living there rent-free may be charged with the rental value of the occupancy against those credits. The outcome is fact-driven and depends on the record you build. Written demands for access or possession, sent early, matter.
• Improvements are credited only to the extent they increased the sale price, not at cost.

Timeline and cost in Kings and Queens

A contested partition under RPAPL 993 in Kings or Queens County commonly takes eighteen months to three years from filing to distribution of proceeds. The appraisal step and the buyout windows add several months by design. Court costs include the $210 index number fee, the $95 request for judicial intervention, a $30 note of issue, the appraiser's fee (typically several hundred to a few thousand dollars for a residential property), and the referee's fee if a referee supervises the sale, which is paid from the proceeds. Attorney fees vary with the level of contest; a case that settles at the first conference costs a fraction of one that goes through appraisal objections and a contested accounting. Legal fees are generally not shifted to the losing side in partition.

What the trial courts have done so far

Appellate guidance on RPAPL 993 remains limited. Trial courts have exercised discretion on the valuation date and on how to reconcile competing appraisals. In 2nd Ave Holding 1 LLC v. Lowenbraun, 2021 NY Slip Op 31276(U) (Sup Ct, NY County 2021), the court applied the statute to a case where an investor had bought a one-sixth interest from a family member, held that it had discretion to select the valuation date, and averaged three appraisals to arrive at a figure for the family cotenants' buyout right. The case involved an outside buyer rather than a sibling occupant, but the point carries over: expect the court to control the valuation process, and expect your own appraisal to be one input rather than the answer.

For a negotiated alternative to litigation, see offering a buyout of a jointly owned residence and responding to a buyout offer.

Situation 5: Your sibling claims a life estate or that your parent promised the house

The occupying sibling frequently says, "Mom told me I could live here for the rest of my life," or "Dad promised me the house for taking care of him." These claims change the case from a possession dispute to a title dispute, and they can be raised as objections in probate, as a defense and counterclaim in partition, or in a separate Supreme Court action.

• Writing requirement: General Obligations Law 5-703 requires a conveyance of an interest in real property, including a life estate, to be in writing and signed. EPTL 13-2.1 requires an agreement to make a testamentary provision to be in writing. An oral promise, standing alone, does not transfer the house.
• Dead Man's Statute: CPLR 4519 bars an interested party from testifying about personal transactions or communications with the decedent against the estate or the other heirs. The sibling usually cannot take the stand and recount the promise.
• Exceptions the sibling will invoke: GOL 5-703(4) preserves equity's power to enforce an oral agreement on a showing of part performance that is unequivocally referable to the agreement. Separately, a constructive trust may be imposed where there was a confidential relationship, a promise, a transfer or forbearance in reliance on it, and unjust enrichment, the elements set out in Sharp v. Kosmalski, 40 N.Y.2d 119 (1976). Years of unpaid caregiving and major improvements paid by the sibling are the facts these claims are built on.

These claims are difficult to win, but they are not frivolous, and they can add a year or more to a partition or probate proceeding. If your sibling asserts one, evaluate it on its facts early. A weak claim is often best handled by offering a defined move-out period or a modest credit in exchange for a release. A strong one may justify a different division of the proceeds.

The caregiver sibling: offsets, claims, and equities

The sibling in the house is usually the one who gave up years to care for the parent, and that history shapes both the law and the settlement.

New York presumes that services a child provides to a parent are gratuitous. A caregiver who wants to be paid for the care itself must prove an express agreement to pay, and the Dead Man's Statute makes that proof hard. A claim for compensation is presented to the fiduciary under SCPA 1803; if the fiduciary rejects it, it is decided in the accounting proceeding. Documented out-of-pocket expenses are a different matter. A sibling who can show cancelled checks for the property taxes, the mortgage, the roof, or the boiler has a much stronger reimbursement claim than one who claims a wage for care.

On the possession side, the caregiver's occupancy before the parent's death is irrelevant to use and occupancy; the parent consented to it. Occupancy after death is what the court looks at, and the equities run both ways. A caregiver who continued to pay the carrying costs, cooperated with access for appraisers and brokers, and asked for a reasonable period to relocate will be treated differently from one who changed the locks and ignored the fiduciary.

If you are the sibling living in the house, the practical advice is the same regardless of posture. Keep paying the taxes and insurance and keep the receipts. Do not change the locks or deny your siblings access. Respond in writing to any notice you receive. Decide early whether you want to buy your siblings out, because the UPHPA buyout right and the fiduciary's duty to get the best price both favor a sibling who can show financing. See when a parent leaves the estate to a caretaker for the related will contest issues.

Frequently asked questions

Can I change the locks on my parent's house to keep my sibling out?

No. If your sibling has lived there for 30 days or more, removing them without a court order and a marshal or sheriff is an unlawful eviction, a class A misdemeanor under RPAPL 768, and exposes you to treble damages under RPAPL 853. This applies even if you are the executor and even if your sibling has no ownership interest.

Does my sibling owe rent for living in the house after our parent died?

If the estate still owns the house, the fiduciary may charge your sibling's distributive share with the fair rental value of the occupancy in the accounting, though many fiduciaries do not demand rent during the proceeding to avoid creating a tenancy. If title has passed and you are tenants in common, your sibling owes nothing for occupancy unless you were ousted, but a court may offset occupancy value against any credits your sibling claims for carrying costs.

Can the executor sell the house while my sibling is still living in it?

Legally, yes, if the executor has power of sale under the will or under EPTL 11-1.1(b)(5), or obtains a decree under SCPA 1901. Practically, most buyers and lenders require vacant possession at closing, and a house sold with a hostile occupant sells at a discount. Most fiduciaries obtain possession first.

I am not the executor. Can I file an eviction against my sibling myself?

No. Only the fiduciary has standing while the estate owns the house. If there is no fiduciary, petition for letters. If there is one who refuses to act, petition under SCPA 2102 or 2205, or seek removal under SCPA 711.

How long does a partition take in Kings or Queens County?

A contested heirs property partition typically runs eighteen months to three years from filing to distribution. A case that settles at the first conference with an agreed buyout can close in under a year.

My sibling has lived there for decades. Can they claim the house by adverse possession?

Almost never. Possession with the parent's permission is not hostile, and after death a cotenant's possession is presumed to be on behalf of all cotenants. RPAPL 541 requires a cotenant to hold exclusively for ten years after an ouster before adverse possession can begin to run. See adverse possession in New York.

Can my sibling just buy me out instead of a sale?

Yes, and RPAPL 993 gives a cotenant who did not request the sale a statutory right to do so at the court-determined value. Outside of litigation, a buyout at an agreed appraised value, with credits for carrying costs resolved in the same agreement, is the most common resolution of sibling house disputes in our practice.

Which court do I go to?

Surrogate's Court for letters, accountings, removal, and disposition of estate real property. Housing Court (Civil Court) in New York City, or District, City, or Justice Court elsewhere, for a fiduciary's summary proceeding against a licensee. Supreme Court for partition, ejectment, constructive trust, and other title claims.

Talk to a New York estate lawyer about your sibling's occupancy

The right first move depends on which of the five situations above you are in, and the wrong first move, such as demanding rent from a licensee or filing in Housing Court against a co-owner, costs months. The Law Offices of Albert Goodwin handle estate administration, fiduciary removal, and partition of inherited homes in Manhattan, Brooklyn, Queens, and the surrounding counties. Call 212-233-1233 or email [email protected] to discuss your situation.

About the author: Albert Goodwin is a New York estate attorney whose practice concentrates on probate, estate administration, and disputes over inherited property in the New York City Surrogate's Courts and Supreme Court. Learn more about Albert Goodwin.