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New York Estate Sale of Realty Occupied by a Family Member – A Typical Problem

shutterstock_548780089-300x200Time after time, estate executors and administrators seem to be confronted by a common problem – the sale of estate realty occupied by a family member.  The duty or obligation of the estate fiduciary is to collect and protect the estate assets and satisfy the decedent’s debts and obligations and finally, to effectuate distribution of estate assets according to the provisions of a Last Will and Testament or the laws of intestacy.  The many facets of estate settlement have been discussed in numerous articles posted in the New York Probate Lawyer Blog.

Real estate, typically the residence of the decedent, is the largest asset in an estate.  Very often after the death of the decedent, the residence continues to be occupied by a family member or a third party.  When the real estate must or should be liquidated to allow an estate to be administered and finalized, the individuals remaining in occupancy must be evicted.  As is commonly known, evicting persons from their homes is neither pleasant nor easy.

In the case of a decedent’s estate, commencing summary proceedings in the local landlord tenant Court may be the most efficient avenue as to non-related third-party occupants.  However, when a case involves relatives or estate beneficiaries, the Surrogate’s Court procedures often offer a more accommodating forum.  Depending upon the preferences of the local court, a proceeding to remove an occupant from estate property may be commenced in the form of a turn-over proceeding or possibly as an ejectment case.  Article 19 of the Surrogate’s Court Procedure Act entitled “Disposition of Real Property” also provides a procedure to have the Court direct a sale or disposition of the realty.  My Blog, referred to above, has discussed these eviction matters in earlier posts.

A recent Bronx estate case entitled Estate of Jenkins, decided by Bronx Surrogate Nelida Malave Gonzalez on October 8, 2020, deals with the problems caused by a family member remaining in an estate property after the decedent’s death.  In Jenkins, the decedent’s residence continued to be occupied by a grandson.  The decedent’s son was the administrator of the estate and had filed an accounting with the Court seeking to settle the estate.  The administrator also filed a proceeding pursuant to SCPA Article 19 to obtain Court permission to sell the decedent’s interest in the Bronx realty and to oust the grandson from the property.  The administrator had entered into a contract of sale to sell the house to an independent purchaser.  The grandson opposed the sale since he wanted to purchase the property himself.  However, the grandson was unable to demonstrate to the Court that he was financially able to buy the house at the same price as the independent purchaser.  As a result, the Court granted the administrator’s application to sell the estate property and granted an order requiring the ejectment of the grandson from the property after 30 days.  The Court issued a Warrant of Ejectment which would allow a New York City Sheriff to evict the grandson if he did not voluntarily vacate the house.

I have been involved in many cases requiring the eviction of occupants from estate property.  There are numerous Court proceedings which can be used to reach this result.  The matters can be complicated and take a lot of time to finalize.  Call Me Now for a free confidential review of your estate or real estate problem.  We provide 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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