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Articles Posted in Real Estate

shutterstock_548780089-300x200Many decedents’ estates contain assets in the form of real estate.  A decedent may have owned a home or rental property or a commercial building containing a business.  Such items are typically the most valuable items among the decedents’ assets.

If a decedent left a Last Will, such document may provide for the disposition of a specific parcel of real estate to a named person.  When the Will does not contain such a provision or when a decedent dies intestate without a Will, the real property is part of the general estate.  In most of these situations, the property is typically sold to provide for the payment of estate obligations such as an outstanding mortgage or the disposition of funds to a number of estate beneficiaries.  The New York Probate Lawyer Blog contains many articles concerning estate administration.

The sale and closing of real estate by an executor or administrator is usually comparable to the process when a sales transaction is entered into among living individuals.  However, there are a number of important aspects regarding estate closings that should be taken into consideration.  Here are a few important items:

shutterstock_1021207423-300x200A New York decedent may have many different interests in property and assets. Such interests may include real estate such as a residence and financial and bank accounts. These assets are disposed of after death through a number of methods. There may be a Last Will and Testament which, after being admitted to probate, controls the disposition of items held in the decedent’s name alone. Also, assets that are owned jointly or that contain designated beneficiaries are distributed by operation of law to the designee. The New York Probate Lawyer Blog has published many posts talking about asset distribution from an estate.

Another very important right that may flow from a decedent is a right to succeed or take over the tenancy of a decedent’s New York City rent stabilized or rent controlled apartment. This right which is typically afforded to certain family members identified in the rent regulations is important because it preserves the tenancy and rent limitations for the successors. The rent laws and regulations provide very specific guidelines for someone to qualify for this favored treatment.

In addition to family members, the rules allow for so-called non-traditional family members to obtain these rental rights under certain conditions. Where individuals have relationships that in effect amount to financial and family-type interdependence, the law will recognize the need to allow the survivor to take over the apartment tenancy. In these cases, a Court will scrutinize the nature and extent of the relationship to see whether the statutory criteria have been satisfied.

House-Keys-300x200A New York Estate is usually comprised of many different types of assets. There can be bank accounts, brokerage accounts, retirement funds, and business interests in the form of limited liability companies, partnerships and corporations. However, one of the most common and valuable assets of an estate is real estate. There may be commercial properties or residential properties.

The estate fiduciaries, whether an Administrator or Executor, must protect and manage the estate properties. This is part of the fiduciaries’ duties and is necessary for effective estate settlement. In many instances an executor or administrator may be faced with the problem that the real estate is occupied by individuals who refuse to vacate the premises and who do not have a legal right to remain in possession. The New York Probate Lawyer Blog has published earlier articles regarding this estate dilemma. As will be discussed in this blog post, the issue is very common.

When a property owned by the estate is occupied by third parties without any possessory rights, the fiduciary is forced to engage in estate litigation to evict them. Sometimes these eviction cases can be commenced in Landlord-Tenant Court. This is usually the procedure to be used with occupants who have no family or other connection to the decedent. However, when a family member or someone with a close relation to the decedent is improperly refusing to leave the real estate, such as a house, relief may be sought through the procedures in the Surrogate’s Court. As an estate attorney, I have represented many fiduciaries in these types of cases. A recent Manhattan estate case decided by Manhattan Surrogate Nora Anderson on December 19, 2019 entitled Estate of Flender shows how these matters are handled by the Court. In Flender, the decedent’s Last Will directed that the estate real estate be sold. The Will also had a provision that the estate beneficiaries could purchase the real estate if they complied with certain guidelines and timeliness. One of the beneficiaries provided notice that they wanted to buy the estate property where they were presently residing. However, the beneficiary failed to comply with the purchase requirements. As a result, the fiduciary commenced a Surrogate’s Court Procedure Act turnover proceeding to have the beneficiary evicted. The beneficiary argued that the trustees of trusts established under the Will wrongfully refused to make a discretionary payment to the beneficiary that would have provided the financing for the purchase. After a hearing, the Court found that the trustees did not act in bad faith in refusing to distribute trust assets to facilitate the purchase. The Court granted the relief requested in the turnover proceeding and directed the issuance of a warrant of eviction. The beneficiary was allowed 60 days to vacate the estate property.

An Article 81 Guardian appointed to safeguard the person and property of an incapacitated person may need to deal with an assortment of issues.  Similar responsibilities are given to the Executors and Administrators of an estate.

In particular, the property interests of both an incapacitated person and a decedent’s estate may involve an apartment where the person was residing.  When a person dies, if the apartment was not owned in nature of a co-op or condominium unit, the estate fiduciary must arrange to obtain access to the apartment.  The need for access can include securing valuable articles of tangible personal property, locating asset information such as tax returns, bank account statements and brokerage and retirement fund information.  Additionally, the apartment will need to be cleaned out at some point and returned to the possession of the landlord.  Of course, if there are other family members living in the apartment who refuse to leave or provide access or who have claims to continue to occupy the premises in the nature of succession rights, then the fiduciary must grapple with these issues.  The New York Probate Lawyer Blog has published numerous articles concerning problems in obtaining possession of a decedent’s real property.

The Guardian for an incapacitated person may face similar issues particularly if the ward is now residing in a nursing home or other location.  An issue may arise as to whether the incapacitated person intends to return to the community to live in the apartment.  A landlord may want the ward evicted, particularly if the apartment is rent regulated.

Estate assets may include bank accounts, security investment accounts and retirement funds.  However, real estate ownership typically accounts for the largest value in most estates.  Moreover, due to the many ways that real property may be owned and the lack of attention by owners to title formalities, an estate’s interest in such property may be frought with complexity.

Real property in New York can be owned individually or by more than one person as tenants in common or as joint tenants with rights of survivorship.  A married couple can own real estate as tenants by the entirety.  When a property owner dies, the post-death transfer of the property is typically going to be determined by a number of factors.  One consideration is the manner in which the property is owned.  If it is owned in joint tenancy with survivorship rights or as tenants by the entirety, the ownership will be automatically vested in the survivor by operation of law.  However, if the property is held in the decedent’s individual name, it will pass either pursuant to the provisions in a decedent’s Last Will, or transferred by intestacy to the decedent’s next of kin.

As an Estate Attorney in New York City, I have represented clients in Brooklyn estates and Queens estates and Manhattan estates, for example, where the title to estate property was clouded by issues of ownership that preceded the decedent’s death.   In many of these cases real estate that is technically owned by the decedent is still in the name of pre-deceased relatives since no formal action was taken to transfer the title after the death of the older relative.  I have seen property still held in the name of deceased parents and grandparents of the decedent.  Sorting out the current ownership of such property can be a monumental task and might delay the transfer or sale of the property for many months.  This can lead to estate litigation.

One of the most valuable assets compromising an estate is real estate.  Typically, a decedent may own a home which he occupied with other individuals or which third parties occupied alone.

When the Surrogate’s Courts appoints an Administrator or Executor, the duties of the fiduciary often include securing and selling the real estate.  The real estate may need to be sold to satisfy estate obligations such as a mortgage or credit card bills or other debt obligations.  Also, the property may need to be liquidated to divide up the proceeds among a number of beneficiaries.

There are many situations where the persons residing in the estate property refuse to vacate.  I have represented numerous estates where landlord tenant eviction proceedings were required to evict persons occupying estate property.  Additionally, there are estate litigation proceedings that can be commenced in the Surrogate’s Court to remove persons from estate property.  These proceedings can be ejectment cases or turn-over proceedings pursuant to Surrogate’s Court Procedure Act 2103 entitled “Proceeding by fiduciary to discover property withheld or obtain information”.

One of the most common problems and sources of estate litigation concerns the possession of estate property by third parties.   In the typical case one of the assets owned by the decedent is property which can be in the form of a house, or a cooperative or condominium apartment. Once an executor or administrator is appointed to represent the estate, the fiduciary has the responsibility to take control of and protect the asset. When the estate property is occupied by a third party or surviving family member, the fiduciary may be prevented from securing the property or selling it to pay estate debts or distributions. The New York Probate Lawyer Blog has published many articles concerning evictions and estate property. This situation often results in estate litigation in either the local landlord-tenant Court or the Surrogate’s Court. New York City Estate Lawyers are familiar with these proceedings. Continue reading

A decedent’s estate is settled by either an Administrator or an Executor.  The estate fiduciary typically retains a New York City Estate Attorney to provide legal representation regarding the initial fiduciary appointment and subsequent administrative tasks.

One of the most important responsibilities of the fiduciary is to identify and collect estate assets.   The New York Probate Lawyer Blog has talked about this aspect of estate cases in many posts.   It is common that the primary asset owned by a decedent is real estate usually in the form of a residence. Such property can be a single family home, or a cooperative or condominium apartment. Continue reading

One of the more common problems that an executor or administrator may encounter is an unauthorized occupant of a decedent’s real estate. The New York Probate Lawyer Blog has discussed this issue in a number of earlier articles. However, since this matter routinely occurs during the course of estate settlement, a review of the matter is appropriate.

The situation that is typically faced is that when a person dies owning real estate such as a single or multi-family home or property, there may be third-party individuals who continue to reside in the property. These individuals may be other family members or non-family friends or tenants. In a lot of these cases, these occupants do not have any leases or any right to continue occupying the property. Since it is the estate fiduciary’s duty to distribute the real estate to estate beneficiaries or to sell it to effectuate a payment to beneficiaries of their estate share, the fiduciary needs to have all occupants vacate the property. Continue reading

It is very common that a decedent is a tenant in a New York City Rent Stabilized or Rent Controlled apartment. The rules regarding such rent regulated housing are very complex and concern matters such as the amount of rent that can be charged and other landlord-tenant issues.

One of the aspects of rent regulated housing is that certain family members and other persons who had been living together with the decedent in a family relationship, are entitled to succession rights to the apartment. In other words, these survivors have the right to take over and become the new tenant under the lease in the place and stead of the decedent. Continue reading

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