A Will Must Be Probated to Transfer Real Estate


One of the most valuable assets in an estate is typically real estate.  This asset is usually the decedent’s residence.  Since real estate predominates as an estate asset, many aspects of real estate law can be involved in estate settlement.  Also, estate litigation in the Surrogate’s Court often concerns this asset.  Issues that arise may concern the following matters:

  1. Title or ownership of the property.
  2. Claims against the property. These claims may be in the form of an outstanding mortgage or liens which arise due to judgments against the decedent or unpaid taxes or property violations.
  3. Various types of violations or building code issues.
  4. Property line disputes such as encroachments or adverse possession claims.

As can be seen, the settlement of an estate with real estate can be complicated by these matters.  Estate lawyers are familiar with these issues. The New York Probate Lawyer Blog has published many articles concerning real estate and the settlement of a decedent’s estate.  A recent Queens estate case decided by Queens Surrogate Peter J. Kelly on November 7, 2022 entitled Matter of Rosenblatt involved real estate issues in an estate.

In Rosenblatt, the decedent’s estate included her residential real estate.  The Queens Public Administrator was appointed as the estate administrator since no Will had been offered for probate.  The decedent was survived by a number of children and a grandchild as next of kin distributees.  One grandchild and his spouse moved into the property after the decedent’s death.  After the Public Administrator sold the property, the Public Administrator sought to settle a final account.  Objections to the account were filed by the grandchild and spouse who had been living in the property.  In an accounting proceeding, interested parties may file Objections to the account.  Also, claims were asserted in a cross-motion to the Court.  The main argument in the cross-motion was that the Public Administrator did not have the authority to sell the property because the property was devised to the Objectant’s parent pursuant a copy of a Last Will and Testament prepared by the Decedent.

As the Court explained in its decision which dismissed the Objections and cross-motion,  the problem with the argument relating to the terms of the Will was that  the purported Will was never admitted to probate and no petition was ever filed for the probate of the Will.  Also, no proceeding was commenced to have a copy of the Will probated.  Therefore, the copy of the Will had no force and effect.  This resulted in the decedent dying intestate and the property was transferred automatically by operation of law to the decedent’s next of kin.  All of the distributees received a share of the property upon the decedent’s death. Thus, the Objectants had no right to receive or live in the property pursuant to the alleged Will.  The Court found that the Public Administrator, as estate administrator, had full authority to sell the property, pay administration expenses and distribute the net estate to all of the estate distributees.

Dealing with the many issues in an estate can be very complicated.  I have represented parties in probate and administration cases dealing with real estate matters for over forty years. Executors and Administrators and beneficiaries need to know their rights.  Do you have an estate or real estate issue?  Call Me Now for a free confidential review of your case.  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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