A 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.