My brother has been living in our mom's house since she died. Can the estate charge him rent?

The short answer is yes, the estate can usually charge rent when someone is living in estate property. But there are several things you need to consider.

Check the will first

Start by reading your mother's will carefully. She may have included instructions about the house. Sometimes a will-maker gives someone a life interest in a property, giving them the right to live in the property for the rest of their life. The will typically says what should happen to the property once that person passes away.

If the will gives your brother a life interest, you must follow those instructions, including whether or not rent should be charged. The will should also explain who pays for property taxes, utilities, repairs and major improvements while the person is living there.

Collecting rent on behalf of the estate

If the will doesn't say anything about your brother getting to live in the house, you may legally have to charge him occupational rent. This is based on the idea of unjust enrichment. That means one person gets a benefit (living in the house) while the other beneficiaries lose out.

The amount of rent you charge should be based on what similar properties rent for in the area. If your brother has paid for things like property taxes, utilities or repairs, those costs can be deducted from what he owes.

There's no set notice period in estate law for starting to charge rent. Clear communication is important. Talk with your brother about the situation. Explain your duty to be fair to all beneficiaries. The rent can be collected as money owed to the estate. Or, if your brother is also a beneficiary, it can be deducted from his share when you distribute the estate.

If your brother won't agree to pay rent, you may need to apply to court. The court can order him to pay occupational rent. They'll decide what's fair based on market value and what he's contributed to maintaining the property.

It's worth approaching this conversation with some compassion — your brother may be grieving too, and the family home can carry deep emotional significance for everyone involved. 

Options for the property

As the executor, you also need to think about the long-term plan for the property. If your brother wants to keep living there, he could buy out the other beneficiaries' shares. Or he could receive the house as his inheritance, with other beneficiaries getting different assets of equal value.

Of course, the legal options must be within the bounds of what the will says you can do with the property.

Disputes over a family home can be one of the hardest parts of settling an estate — emotionally and legally. You may want to speak with a lawyer to make sure you're meeting your duties as executor and being fair to everyone involved. A lawyer can help you figure out the right approach for your specific situation.