Household staff in the context of probate: part two – property

Insight

03.07.2025

Background

This is the second of our series of briefing notes on the key issues in relation to household and other staff following the death of a high- or ultra-high-net-worth individual. Our first briefing note focused on matters of employment law, and we now turn to property law.

By way of recap, on the death of an individual, their Personal Representatives (PRs) take control of the Deceased’s assets. This means that they are, among other things, responsible for any residential properties and land owned by the Deceased. It will be for the PRs to ensure that such property is secured and maintained, that the insurers have been notified of the death and that cover can continue (both for the property itself and any personal possessions located there). The PRs must also consider the terms upon which any existing occupant(s) may continue to live there – and this briefing note reviews the key issues in that regard.

For many high- and ultra-high-net-worth individuals, it is common for household and other staff to live on-site. Following the owner’s death, it is essential to establish (i) who is occupying the property; and (ii) on what basis they are occupying. This will have implications, not just for the ongoing security and maintenance of the property but, more importantly, the terms of their continued occupation and the PRs’ ability to obtain vacant possession. Without the ability to obtain vacant possession, it may be impossible to sell the property. For the reasons mentioned in Part 1, it is also crucial to ensure that employment law issues are promptly addressed.

Is the occupant an employee?

If the occupant is an employee of the Deceased, the PRs should consider whether the continued occupation is justified. For example, the support of a carer may no longer be required, but it may be beneficial to retain a gardener’s services to maintain the property with a view to a future sale. The PRs may also want one or more employees to remain in occupation for security reasons.

There may be an employment contract in place which contains provisions granting the employee accommodation rights linked to their employment, or there may be a separate service occupancy agreement. If drafted correctly, a service occupancy agreement should provide that, once the employment ends, the employee’s right of occupation ends with it. This leaves the PRs on solid ground for obtaining vacant possession.

What if the occupant is not an employee?

If the occupant is not an employee, the PRs should explore whether there is some other agreement in place that gives them a right to occupy – for example, a licence to occupy or a tenancy agreement. The form of document will determine the level of security of tenure the occupant enjoys and, therefore, the steps the PRs must take and the appropriate notice period they must honour before seeking vacant possession. The form of document will also determine the statutory obligations that fall on the PRs as landlord or licensor in the shoes of the Deceased. Getting these wrong can inadvertently grant greater rights to the occupants than anticipated, which could in turn cause significant loss to the estate. It is therefore essential that the PRs obtain legal advice before taking any action.

On a day-to-day basis, any licence to occupy or tenancy agreement should contain provisions setting out the various obligations of the parties in relation to the property. For example:

who is responsible for insurance;
who is responsible for the outgoings of the property; and
who is responsible for maintenance and repairs.

If there is nothing documented at the time of the Deceased’s death, the PRs should seek to put something in place promptly (see below).

What if there is no agreement relating to occupation?

Without formal documentation, the PRs and occupier lack certainty as to the occupier’s right to be there, for how long, and what they are entitled to do (or obliged to do) with the property. The PRs also run the risk of falling foul of their statutory obligations and in doing so, impeding their ability to obtain vacant possession. Crucially, adults in actual occupation can accrue certain rights in a property simply by virtue of their occupation.

Allowing an undocumented occupier to remain in situ leaves room for uncertainty in this regard, and applying to court for possession if an occupier refuses to leave can be a lengthy and expensive process. An applicant has a much better chance of success if they can show the court the document governing occupation and that they have clearly followed the prescribed steps to evict the occupier fairly.

Seeking legal advice

Occupation rights is a complex area of law with wide-reaching implications. It is essential that they be handled with care and sensitivity, particularly in the aftermath of a property owner’s death. The Deceased’s PRs should seek legal advice in short order, to ensure that they protect the interests of the Deceased’s estate and carry out their duties appropriately. To act otherwise may expose the PRs to personal liability for loss to the estate.

Farrer & Co is here to help PRs navigate such sensitive situations. If property advice is required, please contact Adam Fletcher or your usual contact in the Residential Property or Rural Property team. For wider probate advice, please contact Amy Newhall, Richard McDermott or your usual contact in the Private Client team.

This article is part of a series of insights. Read more below.

This publication is a general summary of the law. It should not replace legal advice tailored to your specific circumstances.