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A New York Fiduciary Can Restrain the Transfer of Alleged Estate Property

shutterstock_96626974-300x225A New York Executor or Administrator has many duties and obligations.  Among these matters is the necessity to identify, protect and collect estate assets.  The many powers granted to a fiduciary are set forth in Estates, Powers and Trusts Law Section 11-1.1 entitled “Fiduciaries’ powers.”

While collecting assets such as bank accounts and mutual funds is typically routine, there are many situations where asset collection can be difficult and time consuming.  For example, there are many cases where a decedent owned real estate such as a single or multi-family property.  Very often, in order to provide liquidity to satisfy estate debts such as a mortgage or to allow for distributions to a number of beneficiaries, the real property must be sold.  However, there are circumstances which can interfere with a property sale.  The property may be occupied by relatives or third parties who refuse to vacate.  This situation can result in potential damage to the property or a diminution in the value of a sale.  Sometimes real estate cannot be sold at all unless it is vacant.  The New York Probate Lawyer Blog contains many articles discussing the issues associated with estate real estate.

In other cases, property that may be owned by a decedent is held in the name of another party.  These matters necessitate Surrogate’s Court proceedings whereby the administrator or executor initiates proceedings in the Surrogate’s Court to obtain the turnover of the claimed property to the estate.  SCPA Section 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information,” provides the procedure to discover and enforce title to assets to which an estate claims ownership.

In these situations, the estate fiduciary often seeks relief from the Surrogate’s Court in the form of a temporary restraining order or preliminary inspection to prevent a third party from transferring or liquidating the asset until the estate’s interest can be fully determined by the Court.  Such was the situation in a recent Queens estate case decided by Queens Surrogate Peter Kelly on August 18, 2021 entitled Matter of Estate of Kokotos.

In Kokotos, an estate administrator sought the turnover of real estate which was being held in the name of a limited liability company.  The administrator claimed that the real estate interest had been improperly transferred from the decedent by a power of attorney given to the decedent’s wife.  During the course of the estate litigation, the Court issued a restraining order preventing the transfer of the property.  In the Kokotos decision, the Court refused a request by the parties who were the subject of the restraint, to vacate the restraining order.  The Court refused to eliminate the restraint and found that the parties seeking the removal failed to provide a basis for such action.

I have represented parties in estate litigation and cases where a Court has issued an injunction.  These matters can be quite complex and the assistance of an experienced estate lawyer can be essential.  Call Me Now for a free confidential review of your estate or guardianship issue.  We offer reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estates 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 any questions regarding these matters, please contact me at (212) 355-2575 for an initial free consultation.

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