You can live in a house during probate in California, but your right to stay depends on who you are to the person who died and whether the court has formally protected the arrangement. A surviving spouse, a registered domestic partner, or a minor child of the deceased can ask the probate court for a court-ordered right to occupy the home called a probate homestead. Everyone else lives there only as long as the estate’s executor allows it.
Because California probate typically runs 9 to 18 months, the difference between an informal arrangement and a court order can decide whether you keep your home for the length of the case.
Who Controls the House Once Probate Opens
When probate begins, the court appoints a personal representative, either the executor named in the will or an administrator, to manage the estate. That person has a legal duty to take possession of estate property, insure it, and preserve its value. Practical decisions about the home flow from that duty: whether an existing occupant can stay, whether to rent the property out, and whether it needs to be sold to pay debts.
If you were already living in the house when the owner died, the executor will often let you remain, at least at first. An occupied home is easier to maintain and less exposed to damage or break-ins. That permission is informal, though. It can be withdrawn if the estate’s needs shift, and it offers no defense if the executor later decides to list the property.
The Probate Homestead
A probate homestead is a court order that sets aside a home for the use of specific family members while the estate is being administered. Unlike the executor’s informal permission, it carries the force of a court order. The court can grant it any time after the estate inventory is filed.1California Legislative Information. California Code Probate 6520 – Setting Aside Probate Homestead
Only two categories of people qualify:
- The surviving spouse, which includes a registered domestic partner.
- Minor children of the deceased, meaning children under 18 at the time of the petition.
No one else is eligible. Adult children, siblings, parents, and unrelated cohabitants cannot receive a probate homestead, even if they lived in the home for years.2California Legislative Information. California Code Probate 6521 – Setting Aside Probate Homestead
The court is not required to designate the exact house the family was living in. It selects the “most appropriate property available” from the estate, following a statutory preference that starts with community and quasi-community property and moves to jointly held and separate property if none is available. One hard limit applies: the court cannot select property where a third party already has a right to possession, such as a tenant with a lease, unless that person agrees.3California Legislative Information. California Code Probate 6522 – Setting Aside Probate Homestead
How to Petition for a Probate Homestead
Any interested person can file the petition. In practice, it is almost always the surviving spouse or the guardian of a minor child. The petition goes to the probate division of the superior court in the county where the deceased was domiciled.4California Legislative Information. California Code Probate Code 7051 – Venue for Proceedings Concerning Administration of Decedent’s Estate
Once the petition is filed, the petitioner must give formal notice of the hearing to the personal representative, each affected heir, and each known devisee whose interest would be affected. Notice follows the procedures set out in Probate Code Section 1220.5California Legislative Information. California Code Probate 6525 – Setting Aside Probate Homestead
At the hearing, the judge weighs several factors before deciding whether to grant the homestead and on what terms: the financial needs of the surviving spouse and minor children, any liens or mortgages on the property, creditor claims against the estate, the needs of other heirs or beneficiaries, and what the deceased intended for the property based on their will or estate plan.6California Legislative Information. California Code Probate 6523 – Setting Aside Probate Homestead The court can attach conditions, such as requiring the homestead recipient to assign other estate property to the heirs who would otherwise have inherited the home.
How Long the Homestead Lasts
A probate homestead is always temporary. The court’s order must specify an end date. The statutory maximums are the surviving spouse’s lifetime for a spouse, and the child’s 18th birthday for a minor child. The actual term can be shorter depending on the circumstances.7California Legislative Information. California Code Probate Code PROB 6524
Even within that timeframe, the order can be changed. Any interested party, including the homestead recipient, other heirs, and creditors with liens on the property, can petition the court to modify the conditions or terminate the homestead before the estate’s final distribution if circumstances change.8California Legislative Information. California Code Probate 6527 – Setting Aside Probate Homestead The homestead is secure, but not untouchable.
Creditors, Mortgages, and Whether the House Can Be Sold
Property set aside as a probate homestead remains liable for claims against the estate, but the homestead right takes priority. That means the property can eventually be reached to satisfy debts, but only after the homestead period ends.9California Legislative Information. California Probate Code 6526
Secured debts are the exception. A mortgage or other lien that existed when the owner died survives the homestead, and the secured creditor’s rights are not cut off. Against unsecured claims, the homestead right is exempt up to the amount of California’s homestead exemption, which provides meaningful protection.9California Legislative Information. California Probate Code 6526
Sometimes the estate lacks the cash to pay debts, taxes, or administrative costs, and the home has to go. In California, sales of estate real property must be reported to and confirmed by the court before title passes, even when the will authorizes the sale.10California Legislative Information. California Probate Code 10308 Notice of the confirmation hearing goes to all interested parties, which gives an occupant a chance to object.
If a probate homestead is in place, the homestead right takes priority over the sale, and the court would need to terminate or modify the order before the property could be sold free and clear. Without a homestead, the occupant’s position is much weaker. That gap is the strongest practical reason to formalize a living arrangement through a homestead petition. Informal permission can be withdrawn when the executor decides to sell. A court order cannot.
Family Allowance for Everyday Costs
The probate homestead protects the roof over your head. Separately, California law provides a family allowance to help eligible people cover living expenses, meaning food, utilities, and day-to-day costs, while the estate is being administered.
The surviving spouse and the deceased’s minor children are entitled to a reasonable allowance based on their circumstances. Adult children who are physically or mentally unable to earn a living and who were dependent on the deceased also qualify as a matter of right. The court has discretion to extend the allowance to other adult children or to parents of the deceased who were actually dependent on the deceased for support.11California Legislative Information. California Code Probate Code PROB 6540
If someone eligible for the allowance already has reasonable income from other sources and other eligible people need support, the court will direct the allowance to those without independent means.11California Legislative Information. California Code Probate Code PROB 6540 The family allowance and the probate homestead can be combined, which matters for a surviving spouse with limited income.
A Faster Path for a Surviving Spouse
If the home was community property, a surviving spouse may not need a probate homestead at all. California law allows a surviving spouse to file a spousal property petition to confirm ownership of community property without full probate administration. When the deceased dies without a will and the property would pass to the surviving spouse under intestate succession, or when the will leaves the property to the surviving spouse, the property passes directly and no administration is necessary.12California Legislative Information. California Code Probate 13500
This route can resolve ownership in weeks rather than the many months full probate typically takes. If it applies to your situation, look at it before filing a homestead petition.
Paying the Bills While You Live There
Whether you stay by the executor’s permission or under a court order, someone has to cover the ongoing costs of the home. That usually means the mortgage, property taxes, homeowner’s insurance, and routine maintenance. A homestead order can specify who pays what, and the allocation often turns on the estate’s finances and the occupant’s own resources.
The executor may require the occupant to pay fair-market rent to the estate. This is more likely when the estate is short on cash to pay creditors, or when the occupant is one of several beneficiaries and living rent-free would effectively enlarge their share. Rent collected typically goes toward the property’s expenses or the estate’s debts.
Routine upkeep, such as a leaky faucet or basic yard care, is generally the occupant’s responsibility. Major repairs and capital improvements are a different question. Those usually need the executor’s approval and may be paid by the estate, since they benefit all beneficiaries. If a major repair comes up and you’re unsure who should pay, raise it with the executor before spending. Unreimbursed improvements are a common source of disputes at final distribution.
If You Don’t Qualify for a Homestead
Adult children, other relatives, and unrelated people living in the home at the time of death have no automatic right to remain. They stay at the executor’s discretion, and the executor can ask them to leave if the estate needs the property vacated for sale, appraisal, or other administration.
An executor cannot simply change the locks on someone who refuses to go. California law requires formal legal proceedings to remove an occupant, and the appropriate process depends on whether the person is a holdover tenant, a former family member, or something else. Self-help removals expose the executor to personal liability and can delay the estate.
Tenants who held a valid lease when the owner died generally keep their rights under that lease. The estate steps into the deceased landlord’s position, and the personal representative must honor the lease.