Real estate is typically one of the most valuable assets comprising a decedent’s estate. Typically, a person’s residential house is a major asset. Many individuals also own commercial properties that may be used as a part of a business or may contain tenants. In view of the large worth of real estate assets it is common that the property is at the center of many estate battles.
A common occurrence appears to involve a pre-death transfer of the real estate interest to one person to the exclusion of others who would otherwise receive the property pursuant to a Last Will or through their rights of intestacy as a distributee of a decedent. Moreover, these lifetime transfers often occur when the decedent is elderly and suffers from physical or psychological conditions. Also, the deeds may be executed by persons acting as an attorney-in-fact under a power of attorney. Since these changes in property ownership appear to be improper and deprive potential beneficiaries of valuable inheritance rights, lawsuits in the Surrogate’s Court and Supreme Court frequently occur concerning ownership rights and the validity of the deeds reflecting the transfers.
A recent case decided by Kings County Justice Francois A. Rivera on February 20, 2014 provides a good example of a controversy created by real estate owned by a decedent. In Juliano v. Juliano, the decedent (“Beatrice”) had owned a home in Brooklyn where she lived with some of her adult children. Beatrice had made a Last Will in which she left her entire estate, which included the house, to her four children in equal shares. Approximately 6 years prior to her death it appears that Beatrice signed a deed transferring her entire interest in the house to her son to the exclusion of the other 3 children. However, it seems that the son receiving the property (“Frank”) did not accept or record the deed at the time it was signed by Beatrice but waited about 6 years to record it.
Interestingly, the Court voided the deed because it found that the gift was not effective due to the lack of proper acceptance by Frank at the time the deed was made. Additionally, although the Court found that there was a confidential relationship between Beatrice and Frank that would have provided a basis for a finding of undue influence, the Court declined to void the transaction on that ground since it had determined the deed was invalid due to the lack of acceptance.
As an estate litigation attorney, I have represented numerous individuals in situations where issues have arisen concerning the alleged improper transfer of real estate and other assets from a decedent to a family member or to a third party. These cases are typically presented in Surrogate’s Court proceedings and Supreme Court proceedings. Sometimes the issue is raised before a person dies and is litigated in a Guardianship case. The Guardianship Court has the power to void deeds and other transactions it finds to be improper due to the abuse of a power of attorney or the incapacity of persons making the transfer.
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