Can a bankruptcy stop the eviction proceedings related to a probate matter? - Bankruptcy Law Questions and Answers- LawQA.com

Free Answers to your Legal Questions by Lawyers.
ask »


Can a bankruptcy stop the eviction proceedings related to a probate matter?

A will shows one sibling [sister] and her niece as joint tenants on property left by a decedent. The other sibling [a brother] is staying in the property and maintaining it, over the last 5 yrs. Both siblings were named as co-executors of the decedent’s will. Can the sister evict the brother from the property, even if the niece doesn't agree with it? Also, there are other heirs involved, and the sister's attorney never brought them before the probate court. Can a bankruptcy stop the eviction proceedings? Please respond.

William C. Gosnell, Attorney at Law
Contact this Attorney Now

No one co-owner cannot evict a co-owner

There is no need for Bankruptcy.

Answer Applies to: Tennessee
Replied: 1/19/2011

Carballo Law Offices
Contact this Attorney Now

Filing for bankruptcy protection will stop the eviction. Filing bankruptcy will stop all legal action against the person filing. The reason is to protect the bankruptcy estate. That does not mean that it would be wise to file for bankruptcy because of that alone without consulting with an attorney. Once you are in Chapter 7 you cannot get out freely so you might end up losing property. A Chapter 13 might be a better choice but you really need to have a consultation with a local bankruptcy attorney to determine if a bankruptcy filing is a good option and which Chapter would be best for your situation. There might be a way to stop the eviction through the probate court that might be a better alternative. You need to be very careful about what you do and do it only after consulting with the bankruptcy attorney and possibly the probate attorney as well. Just because you can stop an eviction by filing bankruptcy does not mean that the person wanting to do the eviction cannot go to the bankruptcy court and obtain permission to proceed with the eviction. That is called relief of stay.

Answer Applies to: California
Replied: 1/18/2011

Answer By Janet Lawson
Janet A. Lawson Bankruptcy Attorney
Contact this Attorney Now

The simple answer is Yes, a bankruptcy will stop the eviction. However, one can apply to the bankruptcy court to permit the eviction to proceed. This is called "Relief From the Automatic Stay." He needs to see a lawyer.

Answer Applies to: California
Replied: 1/18/2011

Answer By Gus Johnson
Gus Johnson Attorney at Law
Contact this Attorney Now

Normally a bankruptcy filing stays an eviction for a limited period of time. Looks to me like there are bigger issues that you need to consult with an attorney about.

Answer Applies to: South Dakota
Replied: 1/18/2011

Answer By Harry L Styron
Law Office of Harry L Styron
Contact this Attorney Now

The scenario you pose is complicated by the fact that each of the joint tenants has equal right to occupancy. Neither of them can "evict" the other. However, once probate of the state is complete and the property is distributed, any of them can bring a "partition" action against the rest, which will result in the property being sold and the proceeds divided according to their respective interests.

Answer Applies to: California
Replied: 1/18/2011

Sussman & Associates
Contact this Attorney Now

By all means a bankruptcy can stop an eviction. Probate or not, a BK will temporarily stop the eviction.

Answer Applies to: California
Replied: 1/18/2011

© 2017 MH Sub I, LLC. All rights reserved.
Terms & Conditions | Privacy Policy | IB Cookie Policy