A New York Executor May Need to Evict Occupants From Estate Property

Fiduciaries who are appointed by the Surrogate’s Courts in New York have many responsibilities.  The fiduciary can be an Executor or an Administrator.  It is very common for a decedent’s estate to have amongst its assets real estate.  In fact, in many situations a decedent’s home may be the most valuable asset of an estate.

Single and multi-family homes exist throughout the New York Metropolitan area and over the years the value of these properties have increased dramatically. The New York Probate Lawyer Blog has provided numerous posts that discuss issues relating to the eviction of persons who occupy estate real property. To re-cap, when a person dies the house in which he/she lived may continue to be occupied by someone who is not entitled to receive the entire property either pursuant to a Last Will or through intestate administration. The occupant could be a third-party tenant or perhaps even a relative of the decedent.In order for the estate fiduciary to administer the estate effectively, and pay estate expenses, the house may need to be sold. Unfortunately, the typical purchaser of real estate wants the property be vacant at the time of closing and that no tenants or occupants remain.

I have represented many Executors and Administrators in bringing eviction proceedings in the Surrogate’s Court or in the Landlord-Tenant Courts so that estate property can be sold without anyone retaining possession.  These eviction cases can take many months and be costly.  However, it is important for the estate fiduciary to take the initiative to commence and complete these eviction court cases.  Executors and Administrators have a fiduciary duty to protect estate assets and to take the necessary steps to administer them and make final distribution to the estate beneficiaries.

As New York City Estate Lawyers know, there can be many problems associated with persons who refuse to leave property that is part of an estate.  The occupancy of the property may prevent the estate fiduciary from gaining full access to the property and repairing same or making certain that the structure is not being damaged.  It is not unusual for occupants to cause damage to property.  Also, if the occupants are not paying monthly rent then estate funds are being utilized to pay for utilities and taxes while the eviction court proceedings drag on.  Although the goal of the fiduciary is to sell the house and rid the estate of the cost to maintain the property by selling it, such sale may be delayed by months due to the refusal of occupants to give up possession.

The problems caused by continued occupancy of estate real estate were recently reflected in a decision by Queens Surrogate Peter Kelly in a decision dated February 10, 2016 in a case entitled Matter of O’Hara.   In O’Hara the decedent died leaving a Last Will under which his house was left to his eight children.  For many years after the decedent died some of the children continued to live in the house and they managed the property together and made certain repairs.  Twenty years after the decedent died one of the children, who was the estate executor, commenced a proceeding in the Queens Surrogate’s Court to evict the sole child remaining in the property.  Although the Court recognized that an estate executor had the power to administer real estate and seek to eject occupants, the Court denied the petition.  It was found that the estate administration had really been completed and that over the years the children had been managing and administering the property as co-owners.  The Court concluded that the property was no longer a part of the estate and recommended that any dispute regarding the sale of the co-owners be resolved in a partition action in the New York State Supreme Court.

If you have any questions or issues regarding estate administration or estate eviction proceedings or real estate concerns call me now for a free discussion.   New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Manhattan and Brooklyn. If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.

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