One of the most common conflicts when processing an inheritance arises when one of the heirs already lives in the deceased’s home and decides to remain there after his death. What was previously a situation consented to by the parents can become a legal problem between siblings.
Lawyer Manuel Hernández, director and founder of Vilchez Abogados, explains it clearly: “if I am occupying a home because my father or mother was letting me occupy it, nothing happens, but if they die, immediately those assets are capable of producing income, of being rented, and therefore they are what we call patrimonial assets.”
That is, while the owner lives, he can allow a child resides in the home without paying rent. But once you die, the property becomes part of the inheritance and stops depending on that individual will.
The authorization is no longer valid after death
Hernández insists that the permission granted by the father or mother is not automatically maintained after his or her death. “The authorization no longer comes from the original owner, it does not come from the person who has died because that person has died, but rather it comes from the authorization of the others as owners, from the other heirs.”
At that moment, all co-heirs become co-owners of the property. If one of them occupies it without the consent of the rest, the situation can be considered an untitled occupation.
Two possible ways: eviction or rent claim
According to the lawyer, if the heirs who want to recover the home add up to the majority of the estate, they can initiate an “eviction procedure due to precariousness”, since precariousness is “occupation without title to the property”.
If this majority does not exist, the alternative is to resort to a judicial procedure for division of inheritance. In that case, you can include in the inventory “the market rents that the occupant of the heir property should pay to the rest of the heirs”, so that this amount is deducted from their inherited share.
As Hernández points out, the objective is that “that situation of comfort of the heir who is occupying the property without title becomes a situation of discomfort,” since he must respond financially for the exclusive use of an asset that belongs to everyone.
In short, occupying an inherited home without the consent of the rest can have legal and economic consequences. After death, the property ceases to be an informal family transfer and becomes an asset capable of generating income and being distributed among all heirs.