A New York Estate Fiduciary Can Evict An Occupant From Estate Property

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.More often than not, the occupants of property refuse to leave. When this problem occurs, the administrator or executor must bring Court proceedings to have these persons evicted from the premises. I have represented many fiduciaries in connection with eviction proceedings so that an estate can be settled.

The eviction proceedings can be commenced in different Courts. Typically, if third party non-family members are sought to be evicted, summary eviction cases can be started in the local Housing Court which is part of the New York City Civil Court. Local Courts such as Nassau County District Court or Suffolk County District Court can also hear these cases. The eviction process can be time-consuming and may take many months and delay the settlement of the estate.

In cases where family members occupy the decedent’s property, a proceeding in the Surrogate’s Court can be started to obtain possession of the property.  This process is more complicated than a Housing Court case and requires the filing with the Court of a fully explanatory petition along with the issuance by the Court of an Order to Show Cause or a Citation.  The Surrogate’s Court has the authority to issue to the fiduciary a judgment of possession along with a warrant directing the local sheriff to remove the non-complying occupant.  I have obtained eviction orders in estate cases from both the Housing Court and the Surrogate’s Court.

A recent case decided by Brooklyn Surrogate Margarita Lopez Torres dated April 21, 2017 entitled Matter of Imhotep is a recent example of the Surrogate’s authority to remove an occupant from estate property.  In Imhotep, the Surrogate had awarded possession of the property to the estate administrator c.t.a. and issued a warrant of eviction directing the NYC Marshal to remove the occupants.  One of the occupants sought to have the Surrogate’s Decree vacated by claiming that the Court papers were not properly served.  The Court refused to vacate its prior Decree.   This decision effectively provided that the eviction was to move forward.

The duties of an estate executor or administrator can be complex and difficult. These obligations include securing and obtaining possession of the decedent’s assets including real property.   Call me now if you have any questions regarding the administration of a decedent’s estate or issues concerning estate real estate.

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 Manhattan and Brooklyn. 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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