What is the estate’s personal representative (executor) allowed to do with a decedent’s real property during probate during probate? (Answer: a lot)

Imagine this: a loved one has died and you are left to be the executor/personal representative of the estate.  This person owned real property (a house or condo perhaps).  Now, an individual’s estranged daughter moves in and starts living in the home without permission from the estate.  What obligations or rights do you have as the executor/personal representative to the real property?

Pursuant to RCW 11.48.020 (full text below), the personal representative has the right to possess and manage real property of the estate during probate.  At common law, real property of the decedent was treated differently from personal property, as it vested in the heirs immediately upon the death of the owner.  So, the personal representative had nothing to do with the real property, including rents or profits.  The majority of states have changed the common law, like Washington, to allow the personal representative to have the immediate right to possess and manage real property, and to receive rents and profits of the estate.


Since in Washington a personal representative has the right to possess and manage real property, the biggest issue will likely be whether the home at issue is the property of the estate of the deceased.  Though it might not be applicable in the unlawful detainer action, if the personal representative is not collecting rent from the tenant, the failure to do so is arguably a breach of their fiduciary duties, as it could impact creditors’ claims in the probate action (and thus harm Frisbie, if ultimately she is found to only be a creditor). See e.g. City of Bellevue v. Cashier’s Check for $51,000 & $1,130.00 in US Currency, 70 Wash.App. 697, 855 P.2d 330 (1993) (administrator has a narrow ownership interest in estate real property for the limited purpose of satisfying the legitimate claims of creditors of the estate.).  As a general rule, an executor is accountable for his use of the deceased’s real property. In re Estate of Boston, 80 Wash.2d 70, 72, 491 P.2d 1033 (1971).

Interestingly, even the executor may utilize the house, however, where a person’s only right to possession of the property arises from his status as executor, if he chooses to use the house for his own benefit he must pay rent.  Id.; citing In re Estate of Hickman, 41 Wash.2d 519, 526-27, 250 P.2d 524 (1952).  RCW 11.04.250 also clearly indicates that an heir’s interest in the estate is limited by the claims of creditors, whose interests are represented by the administrator.  Until an estate is closed, the heirs may not treat estate real property as their own.  In re Estate of Peterson, 12 Wash.2d 686, 734, 123 P.2d 733 (1942)