When a person dies, one of the first tasks that a family and fiduciary face is to take control over the decedent’s residence. New York estate lawyers are aware that accessing and securing a decedent’s home can often be difficult and complicated.
To begin with, when a decedent lived alone and passes away in their home premises, the police department may seal the apartment to prevent unwanted intruders. When an apartment is sealed it would be necessary to make an application to the Surrogate’s Court to allow the apartment to be searched for the existence of a Last Will or insurance policies.I have represented many clients and assisted them in obtaining an Order from the Surrogate’s Court to allow them to enter a decedent’s sealed residence to search for a Last Will.
Another problem that may be encountered regarding a decedent’s residence is that a third party may have been living in the home along with the decedent. If the third party has no ownership or tenancy rights to remain in the residence, the Executor or Administrator may need to commence Estate Litigation to have the party evicted or removed. Recently, Manhattan Surrogate Nora Anderson was presented with a petition by an Executor of an estate who was seeking to obtain possession of a decedent’s cooperative apartment. The apartment was occupied by the decedent’s brother who had no interest or right to remain in the apartment after the decedent’s death. In a decision dated December 28, 2015 in Matter of Jakuboski, the Surrogate granted an Order of Eviction to have the brother removed.
I have helped many estate fiduciaries evict individuals who were wrongfully occupying estate property. These eviction cases can be commenced in landlord-tenant court or the Surrogate’s Court. The New York Probate Lawyer Blog contains a number of previous posts regarding this issue.
Another issue that may be encountered during Estate Settlement is the disposition of a rental apartment that the decedent had lived in by himself. Quite often the estate fiduciary wants to maintain the apartment for a period of time so that the decedent’s personal effects can be properly inventoried and disposed of. Typically, the landlord will want the apartment to be vacated and cleaned out as quickly as possible so that it can be rented, usually at a higher rental price.
Many times, there may be occupants who lived in the apartment with a decedent. If the occupants are family members, the New York Rent Control and Rent Stabilization laws may allow the relatives to take over the lease due to a statutory right of succession. I have been involved in many landlord tenant cases concerning a tenant’s right of succession.
Recently an interesting case was decided by Manhattan Housing Court Justice Sabrina B. Kraus on January 6, 2016. In Esposito v. 60 Beach LLC, the Court found that an Estate Administrator did not have a right to be restored to possession of a decedent’s apartment after the landlord had taken physical possession of the unit. The Court found that after the decedent died, the Administrator had not taken physical control over the apartment, and did not have any colorable right to possession. The decedent’s lease for the apartment had expired. However, the Court did order the landlord to place the decedent’s possessions into storage.
Many of my clients have faced complicated issues regarding the possession and safeguarding of houses and apartments owned by a decedent. If you have a question regarding estate property or the Surrogate’s Court process relating to a decedent’s affairs call me now for a free review.
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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