Sibling Living in a Deceased Parent's House in New York: Ejectment, Partition and Rent Claims

Written by Albert Goodwin, Esq., a New York estate litigation attorney. This page covers New York law only. Last reviewed: 2025.

A parent dies. One child stays in the family home, pays no rent, and will not move or agree to a sale. The other children want to know what they can do. In New York the answer turns on one fact: is the house still part of an open estate, or has title already passed to the children as co-owners? That fact decides who can sue, what court hears it, and what relief is available.

This page is the hub for the occupying-sibling problem. It covers both tracks (ejectment by the fiduciary while the estate is open, and partition under RPAPL Article 9 and the Uniform Partition of Heirs Property Act after title vests), the rules on charging a sibling rent, a worked example of a partition accounting with numbers, and the special problem of a sibling who is both the executor and the occupant. For the mechanics of partition generally, see partition of real property in New York. For how a buyout is priced and paid, see buyout of an inherited residence.

Step one: find out where the house stands in the estate

Under New York law, title to a decedent’s real property vests in the distributees (if there is no will) or the devisees (if there is one) at the moment of death. That vesting is subject to the fiduciary’s statutory right to take possession of the property to administer the estate, for example to pay debts or sell it. See Kraker v. Roll, 100 A.D.2d 424 (2d Dep’t 1984), and EPTL 11-1.1(b)(5). The practical question is whether a fiduciary has been appointed and whether the home has been deeded out.

Track one: the estate is open and the fiduciary ejects the occupant

EPTL 11-1.1(b)(5) gives an executor or administrator the power to take possession of estate real property, collect rents, manage it and sell it. Once the Surrogate’s Court issues letters testamentary or letters of administration, the fiduciary has standing to recover possession from a sibling who is living there without the fiduciary’s consent. Until letters issue, nobody has that standing, so the first filing is often a petition for appointment.

The usual vehicle is an ejectment action under RPAPL Article 6, brought in Supreme Court in the county where the house sits. Some fiduciaries try a faster licensee holdover proceeding under RPAPL 713(7) in Housing Court or the local justice court. Trial courts have reached different results on whether a family member who moved into a parent’s home is a mere licensee, so the choice between ejectment and a summary proceeding depends on the facts and the county. Ejectment is the safer route when the occupant has lived there for years or claims a right to stay.

Self-help is not an option. An occupant who has lived in the home for thirty days or more is protected from lockouts under RPAPL 768, and in New York City under Administrative Code § 26-521. RPAPL 853 allows treble damages against anyone who forces an occupant out without a court order. A fiduciary who changes the locks on an occupied house, removes doors or shuts off utilities invites a damages claim and a criminal complaint.

Two points about timing. First, a fiduciary normally pursues ejectment only when the plan is to sell. If the will leaves the house to the children in equal shares and there are enough other assets to pay debts, the fiduciary will often deed the house out and let the co-owners resolve possession through partition. Second, the estate can seek the fair rental value of the home from a sibling who occupied it to the exclusion of the estate, and the fiduciary should account for that claim in the estate accounting.

Track two: title has vested and the remedy is partition

After the executor’s or administrator’s deed is recorded, the children own the house as tenants in common. Each co-owner has an equal right to possess the whole property, so one co-owner cannot eject another. The remedy is a partition action under RPAPL 901, in which any tenant in common may ask the Supreme Court to divide the property or sell it and split the proceeds.

An inherited family home almost always qualifies as “heirs property” under RPAPL § 993, New York’s version of the Uniform Partition of Heirs Property Act. The statute applies where there is no written agreement among all co-owners governing partition, at least one co-owner acquired title from a relative, and a threshold share of the interests or the co-owners are relatives. When it applies, the court must follow a protective sequence:

1. Determination: the court decides whether the property is heirs property and gives notice to all co-owners.
2. Appraisal: the court orders an appraisal by a disinterested licensed appraiser unless the parties stipulate to a value, and the parties may object before the value is fixed.
3. Cotenant buyout: co-owners who did not ask for partition may elect to buy the interests of those who did, at the court-determined value multiplied by the fractional share. The statute sets short deadlines to elect and then to pay, generally 45 days to elect and a further period of roughly 60 days to close.
4. Partition in kind or sale: if no buyout closes, the court considers division in kind (rarely workable for a single house) and otherwise orders a sale, with a preference for an open-market listing through a broker over a courthouse auction.

The buyout step is what lets the sibling in the house keep it. It also means the siblings who want out will be paid at appraised value rather than at a distressed auction price. Deadlines, valuation disputes and financing are covered on the buyout page.

Can you charge the occupying sibling rent? The ouster rule

Between co-owners, the starting rule is no. A tenant in common who occupies the property is not liable to the other tenants in common for rent or use and occupancy merely because the others chose not to live there. The Court of Appeals set out the rule in Jemzura v. Jemzura, 36 N.Y.2d 496 (1975): absent an agreement or an ouster, the co-owner in possession owes nothing for personal use, though a co-owner who collects rent from third parties must account for it. The Second Department applied the same rule in Goldberger v. Rudnicki, 94 A.D.3d 1048 (2d Dep’t 2012), declining to charge the occupying co-owner where no ouster was shown.

Ouster changes the result. A sibling who changes the locks, refuses a demand for keys, tells the others they may not enter, or denies that they have any ownership interest has ousted them. From that point the ousted co-owners can claim the reasonable rental value of their share. Because ouster is the trigger, a written demand for access or keys, and the sibling’s written refusal, is the single most useful piece of evidence in these cases.

Two further points. Some courts have charged an occupying co-owner with the rental value as an equitable offset when that occupant asks the court for reimbursement of taxes, insurance and mortgage payments; a co-owner who wants credits may have to accept a charge. And an occupying co-owner cannot quietly ripen into sole ownership. RPAPL 541 presumes that a co-owner in possession holds for all co-owners, and the adverse possession clock does not even begin until ten years of exclusive occupancy have passed. See Myers v. Bartholomew, 91 N.Y.2d 630 (1998).

A worked example of the partition accounting

Partition is an equitable action. Before the proceeds are distributed, the court adjusts the shares for what each co-owner paid and, where ouster or equity requires, for the value of exclusive use. Carrying costs (property taxes, insurance, mortgage principal and interest, necessary repairs) are credited at cost. Improvements are credited only to the extent they increased the sale price, not at what they cost to build.

Assume three siblings own the house equally. Sibling A lived there for four years after the parent’s death, paid $8,000 a year in property taxes and $2,000 a year in insurance ($40,000 total), and paid no rent. A refused B and C’s written request for keys in year one. The house sells for $900,000. After a 5% broker commission ($45,000) and $15,000 in closing costs, $840,000 is left to divide. Fair rental value is found to be $3,000 a month, or $144,000 for 48 months.

If B and C had never demanded access, so there was no ouster, the use-and-occupancy line would drop out and the numbers would flip: A would receive $306,667 and B and C $266,667 each. The difference of roughly $96,000 to A turns entirely on whether the other siblings made a demand and were refused. Note also that A is not reimbursed for A’s own one-third of the carrying costs, and that A’s payment of taxes while living there rent-free does not by itself create a claim against B and C beyond the credit shown.

When the sibling in the house is also the executor or administrator

This is the hardest version of the problem. The fiduciary has the power to take possession of the house, and the fiduciary is the person who will not leave. EPTL 11-1.1 authorizes possession for the purpose of administering the estate, not for the fiduciary’s personal use. A fiduciary who lives in estate property rent-free while delaying the sale is in a conflict of interest and can be surcharged for the fair rental value in the accounting.

The other beneficiaries have several Surrogate’s Court tools:

• Compel an accounting (SCPA 2205): any person interested in the estate may petition to compel the fiduciary to file a judicial accounting. The court will generally entertain the petition once the seven-month creditor period under SCPA 1802 has run. The accounting forces the fiduciary to disclose what has been done with the house, what carrying costs were paid from estate funds, and whether any rent was collected.
• File objections (SCPA 2211): once the account is filed, beneficiaries object to specific items. Objections in these cases typically seek a surcharge for the rental value of the fiduciary’s occupancy, disallowance of carrying costs the fiduciary paid for personal benefit, and reduction or denial of commissions.
• Seek removal or suspension (SCPA 711 and 719): SCPA 711 lists the grounds for revoking letters, including wasting or improperly applying estate assets and conduct showing the fiduciary is unfit for the office. SCPA 719 permits the court to act on its own in certain circumstances. A petition under SCPA 711 is brought by order to show cause, and the court may suspend the fiduciary pending the hearing and appoint a temporary administrator under SCPA 901 to secure or sell the house.
• Relief against the fiduciary (SCPA 2102): a beneficiary may petition for an order directing the fiduciary to perform a specific act, such as listing the property for sale or delivering information about it.

Removal is not automatic. Surrogates are reluctant to remove a testator’s chosen executor for friction alone, and a fiduciary who is openly holding the house for distribution in kind under the will may be acting properly. The case for removal is strongest where the will or the estate’s debts require a sale, the fiduciary has stalled for a long period, and the fiduciary is personally benefiting from the delay. See the pages on removing an executor or administrator and compelling an estate accounting for the procedure in detail.

No will and no estate opened

If the parent died without a will, the children take under EPTL 4-1.1. If a spouse survived, the spouse takes the first $50,000 plus half of the balance and the children share the rest; if no spouse survived, the children share equally. Title to the house vested in those distributees at death.

Any distributee may petition for letters of administration under SCPA 1001, which ranks the people entitled to serve; where several children have equal priority, the court can appoint one with the consent of the others or hold a hearing. Once appointed, the administrator proceeds on track one above.

Opening an estate is not always required. Because title vested at death, the distributees can bring a partition action as co-owners without letters. The plaintiff will need to prove heirship, usually by affidavit and the death certificate, and a buyer’s title insurer will typically require that proof or an estate proceeding before closing. For a house with no other estate assets and no debts, partition can be faster than administration followed by ejectment.

How long it takes and what it costs

Appointment of a fiduciary in Surrogate’s Court commonly takes several months, longer if the will is contested or a sibling objects to the appointment. An ejectment action is a separate Supreme Court case on top of that. A partition under RPAPL § 993 adds the appraisal and buyout steps before any sale, so a contested partition of an inherited home often runs well over a year. Costs include court filing fees, the appraiser, a referee if the court appoints one, a broker’s commission on sale, and attorney’s fees. In partition the court can allocate costs and certain attorney’s fees among the co-owners out of the proceeds.

Because those costs come out of everyone’s share, a negotiated buyout or an agreed listing is almost always the better financial result. In practice, a filed partition complaint, with the appraisal and buyout clock running, is what moves a sibling who has ignored letters and phone calls to the bargaining table.

Practical steps

1. Pull the deed and the court file. Check the county clerk or ACRIS for the current deed and the Surrogate’s Court for any probate or administration file. This tells you which track you are on.
2. Send a written demand. Ask in writing for keys, access, a sale or a buyout. Keep the sibling’s response. This is the evidence of ouster.
3. Assemble the carrying-cost record. Tax bills, insurance invoices, mortgage statements and proof of who paid them.
4. If no fiduciary has been appointed, petition for letters, or evaluate a direct partition if the parent died intestate and the house is the only asset.
5. If the fiduciary is the occupant, petition to compel an accounting and, where the facts support it, to remove or suspend the fiduciary.
6. If title has vested, file for partition under RPAPL § 993 and prepare for the appraisal and the buyout election.

Frequently asked questions

Can I change the locks on my parent’s house?

Not while a sibling is living there. Locking out an occupant of thirty days or more is unlawful under RPAPL 768 and, in New York City, Administrative Code § 26-521, and exposes you to treble damages under RPAPL 853. An appointed fiduciary may secure a vacant house, but must use the courts to remove an occupant.

Can I charge my brother or sister rent?

As co-owners, not automatically. Under Jemzura v. Jemzura, a co-owner in possession owes nothing for personal use unless the others were ousted or there is an agreement. After a refused demand for access, the ousted co-owners can claim the rental value of their share, and the court will net it in the partition accounting. While the estate is open, the fiduciary can claim rental value on the estate’s behalf from a sibling who excluded the estate.

How long can a sibling stay in the house after a parent dies?

There is no fixed period. The sibling can stay until a fiduciary obtains a judgment of ejectment, a partition sale closes, or the siblings agree on a buyout. A sibling cannot acquire the house by staying: RPAPL 541 presumes the occupant holds for all co-owners for the first ten years, and only after that could adverse possession even begin to run.

What if there is no will and nobody has opened an estate?

Title passed to the children at death under EPTL 4-1.1. Any child can petition for letters of administration under SCPA 1001, or, if the house is the only asset, bring partition directly as a co-owner with proof of heirship.

My sibling says our parent promised them the house. Does that matter?

An oral promise to leave real property does not transfer title. The house passes under the will or, if there is none, under EPTL 4-1.1. A sibling who claims the house under an unsigned promise would have to prove a written agreement under the statute of frauds, General Obligations Law § 5-703, or bring a separate claim such as constructive trust, which is difficult to establish.

Can my sibling keep the house instead of selling?

Yes, through the cotenant buyout under RPAPL § 993. A co-owner who did not request partition can elect to buy the shares of those who did at appraised value. If the sibling cannot pay within the statutory deadlines, the court proceeds to an open-market sale.

Related pages

This page is the starting point for an occupying sibling. For narrower questions, see: partition of real property in New York (procedure, referees and sale mechanics generally); buyout of an inherited residence (valuation, financing and the § 993 election); a sample New York City probate timeline; removing an executor or administrator; compelling an estate or trust accounting; SCPA 2103 discovery and turnover proceedings; and getting access to the house after a death.

Speak with a New York estate litigation attorney

These cases combine Surrogate’s Court administration with Supreme Court real-property litigation, and the right first filing depends on where the title stands and who holds letters. We handle ejectment, partition under RPAPL § 993, use-and-occupancy claims, fiduciary removal and accountings in New York estates involving inherited homes. To discuss your situation, call 212-233-1233 or email email@nyestateslawyer.com.