New York Probate Lawyer Blog
For many New York estates, real estate is the most valuable asset. This is true whether a decedent dies with a Last Will and Testament or Intestate (without a Will). If a Last Will exists, the person nominated as Executor has the task of petitioning the Surrogate’s Court to admit the Will to probate and having Letters Testamentary issued to the Executor. In the case of intestacy, next of kin who are the decedent’s heirs have the right, pursuant to Surrogate’s Court Procedure Act section 1001 entitled “Order of priority for granting letters of administration”, to be appointed as the estate’s Administrator and receive Letters of Administration. The New York Probate Lawyer Blog has published numerous articles concerning probate and intestate administration.
In over 40 years of representing individuals in trust and estate cases, I regularly represent estates where real estate assets are subject to foreclosure actions. Foreclosure occurs for many reasons. Sometimes no one steps forward after a death to obtain the appointment of a fiduciary or keep the mortgage payments current. On occasion, a decedent may have been ill or in financial difficulty prior to death resulting in the foreclosure. In any event, following a death there may be mounting pressure from the foreclosing bank to satisfy the loan or lose the property to a foreclosure Court sale. This is complicated even more when a property may not be able to be sold until final authorization is obtained from a Surrogate’s Court which must appoint a fiduciary or approve a sales contract.
The rules and procedures in estate cases and foreclosure actions can be complicated. Unfortunately, these matters are occurring in separate Courts with different Judges who are not overseeing the entire process. Thus, the intervention of an experienced estate and real estate attorney may be essential for coordinating the various legal proceedings and protecting the estate assets. The typical goal is to sell the estate property before a foreclosure is finalized and a bank sells a property at auction. I have dealt with these issues on many occasions.
A recent foreclosure case in Queens County Supreme Court reflects some of these issues. In Newrez LLC v. Cumberbatch, decided by Justice Karen Lin on November 25, 2025, a plaintiff financial servicing company sought to foreclose against a Queens residential property which was owned by a decedent. Although a family member had filed proceedings in the Surrogate’s Court for appointment as successor administrator, the plaintiff financial company commenced the foreclosure action against the individuals it identified as the decedent’s heirs. The present proceeding before the Court was an application to serve a Summons and Complaint against unknown heirs through publication. The Court ultimately denied the application and found that the plaintiff did not adequately attempt to identify or locate the decedent’s heirs. In its decision the Court recognized that when someone dies, the proper party to serve with papers is the estate fiduciary, such as an executor or administrator. Also, where a decedent does not leave a Will, a decedent’s intestate distributees automatically become owners of a share of the real estate. In such cases where there may not be a personal representative, a plaintiff must demonstrate full due diligence to identify all heirs along with their location for service of process. The Court felt that without such diligent information it would be unfair to subject potential heirs to a foreclosure based upon mere publication of a Summons and Complaint.
I have represented clients in estate settlement and real estate matters for over 40 years. Do you have a question regarding an estate or real estate or estate settlement and the sale of real estate? Call me now for a free confidential review of your issue. We provide reasonable and flexible fee arrangements and personal representation. We provide representation to sell and close title on real estate, condominiums and cooperative apartments owned by decedents and work with real estate brokers, title companies and bonding companies to facilitate estate settlement.
New York Trusts and Estate Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County. If you or someone you know has questions regarding these matters, please contact me at (212) 355-2575 for initial free consultation.