An executor does not necessarily have the authority to evict someone from the decedent's property. Foremost, an executor has no authority to act until the probate court bestows letters of testamentary to the executor; this generally requires a court hearing. Next, executor powers such as the ability to sell property, divide the decedent's estate and other authority does not, in and of itself, grant the executor the ability to evict. Facts and circumstances of the case are also determinative.
Beneficiary in Possession
Another critical issue is what right, if any, the beneficiary in possession of the property has to the property. If, for example, the decedent left a will leaving the home to a named beneficiary (Bill, for instance), then Bill has a valid right to be on the property, and an executor likely will not be able to evict him. Unless the gift is somSapling invalid, the court will follow the decedent's instructions and allow Bill to remain on the property, even if the executor or the other beneficiaries do not think it fair or the proper result.
Lack of Standing
"Standing" is a legal term referring to a party's ability to bring a lawsuit. An executor may lack the necessary standing to bring an eviction action against the beneficiary. For example, in one New York case, an executor sought to evict the beneficiary (an infant) and the beneficiary's mother from a condominium that the beneficiary had a valid interest in, because the mother had not been paying the use and occupancy fees; the executor had been. The trial court initially allowed the executor to maintain the action, but at the appellate level, the ruling was reversed. The executor was found to have no interest or title in the condominium, and therefore could not maintain an eviction action.
The matter may turn on other issues. For example, even if the executor could maintain the action against the beneficiary, the executor should still follow the applicable eviction laws regarding notice and proper service of the summons and complaint. In a California case, the executors of an estate sought to evict a tenant from the decedent's property. The court held that the tenant was never properly served with a summons or complaint, so the court that originally granted the eviction had no jurisdiction to do so. Because of the legal nature of this matter, readers should seek independent legal advice before proceeding.