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Information Regarding Examining and Safeguarding Decedent’s Property In The Residence

After a person dies it is usually necessary to enter the decedent’s residence for various purposes.  To begin with, it may be that the home needs to be searched to see if the person left a Last Will and Testament.  Gaining access to the home may not be difficult if the decedent lived with a spouse or other family member.  However, if the decedent lived alone or voluntary access cannot be obtained, then an application can be made to the Surrogate’s Court for an Order to search the residence for a Will.

There may also be situations where either before or after a fiduciary is appointed, a residence is searched to locate papers and documents relating to the person’s income, assets, debts, business obligations and ordinary bills such as utilities, mortgage, rent or credit cards.

There are a number of important considerations when a residence is searched and the decedent’s personal effects are first reviewed.  If the individual entering the premises is not a duly appointed estate fiduciary he does not have any authorization to remove or otherwise discard any of the decedent’s property.  Additionally, even if the individual has been appointed as Executor or Administrator or Preliminary Executor, extreme care should be taken to inventory and safeguard the contents.

It is common that pursuant to the laws of intestacy or the provisions of a Last Will, someone other than the fiduciary is entitled to inherit the residential property.  Thus, the property should be inventoried and appraised so that no one can complain at a later date that some item of property was misappropriated or lost.  This is especially important when the residence must be cleaned out to allow it to be sold.  This may seem like an uncomplicated process.   However, disputes and estate litigation in the Surrogate’s Court can arise regarding alleged missing property.

A recent Manhattan Estate case entitled Estate of Loe, which was decided by Manhattan Surrogate Nora Anderson on December 31, 2018, provides some insight into the problems associated with cleaning out a decedent’s home.  In Loe, the decedent had been living in an apartment owned by her brother.  After the decedent’s death, the brother wanted the apartment to be cleaned out so that he could sell it.  The nominated executor searched the apartment and secured all of the relevant financial and other papers, then had the building superintendent clean out all of the trash and non-relevant items.

The Objectants to the Will brought a proceeding in the Surrogate’s Court to have the probate petition dismissed and for sanctions to be imposed on the nominated executor claiming that he improperly destroyed evidence that concerned the probate issues.  After reviewing all of the events, the Court found that the nominated executor did not deliberately dispose of items with the intent to destroy evidence and that the disposal of the decedent’s property was not negligently done.  Also, the Court found that the Objectants did not show that any of the items allegedly discarded were relevant to the Will contest.  Thus, the Court denied the Objectant’s application.

I have represented many persons in probate and administration estate matters.  The steps to be taken immediately after a death regarding the decedent’s affairs can appear complex and unclear.  Call me now for a free discussion regarding your estate matter.  I have over 35 years of experience with these cases and offer reasonable and flexible fee arrangements.

New York Trusts and Estates Attorney Jules Martin Haas has helped many clients over the past 30 years resolve issues relating to probate and estate settlement throughout New York City including Queens County and the Bronx.   If you or someone you know has any questions regarding these matters, please contact me at (212) 355-2575 for an initial consultation.

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