Mom died, but nephew won’t leave her home

Dear Len & Rosie,

My mother died one week ago. She has a trust. I am the trustee. My 33-year-old nephew (her grandson) has lived with my mother from the time he was 18. In the last few years he has gotten into drugs. Two weeks before my mother died, my nephew took her to several banks, and coerced her into giving him $2,950.

We did an intervention on him. He was told to go to treatment or go to jail. He said he would enter a drug rehab program but of course he didn't do it. I changed the locks on mother's home, but a police officer said I have to let him back in because he gets his mail there. He lived with my mother for fifteen years and never paid her a dime. Please help.

Karin

Dear Karin,

You probably shouldn't have threatened your nephew with jail time if he didn't behave. It smells of extortion. What you should have done was to have called Adult Protective Services. They could have put real pressure on your nephew and if he went into rehab, or a jail cell, you wouldn't have this problem right now.

We respectfully disagree with the police officer you spoke to. Your nephew isn't a tenant. There's no lease. He was a guest. Your mother could have tossed him out onto the sidewalk at any time. The police wouldn't help her do it without a court order, but your nephew has no legal right to occupy your mother's home. You can kick him out anytime you want.

On the other hand, throwing someone out onto the street is fairly harsh, although it's probably justified under the circumstances due to your nephew's behavior. Most of the time, we advise our clients to give such squatters 60 days notice to terminate their "tenancy", if only to be nice about it.

If your nephew the junkie is no longer there, don't let him back in. Make arrangements for his stuff to be delivered somewhere. The police can't arrest you for not letting him back into the home. It's a civil matter. Just understand that if he manages to get it together, he may try to sue you for an illegal eviction, pretending that he's a tenant instead of a leach. Maybe he'll even concoct an argument that he's entitled to compensation for taking care of his grandmother for fifteen years. It wouldn't be the first time we've seen this happen.

He may even manage to break into the home and reestablish his residency. We've seen children of clients cocoon themselves inside the family home, claiming they have an inalienable right to stay there. Somehow, these children never turn into butterflies and fly away. If he still resides in the home, because you let him back in or he snuck in behind your back, you have two options. Either give him notice and file an unlawful detainer action, or pay him off.

Pay off the man who stole from your mother? If he's willing to go away for the cost of a security deposit and first month's rent, you'll spend less money on him than it may cost you to evict him, not taking into account the damage he could cause to your mother's home if he is left to his own devices pending an eviction.

You need a lawyer. Not only for trust administration, but to deal with your nephew. When everything works out well, trust administration, and even probate, is a more or less mechanical process. That all goes out the window when there's a dispute. It will likely cost you more in lawyer fees than an ordinary trust administration, but don't blame the lawyer. Blame your nephew.

Len & Rosie