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New York Surrogate’s Court Can Order An Eviction from Estate Property

The estate fiduciary is responsible to collect and protect estate assets. These assets may be bank accounts, retirement funds or brokerage accounts. In many estates the most valuable estate is the decedent’s residence which can be a single family home or a cooperative apartment or a condominium unit.

The New York Probate Lawyer Blog has provided a number of articles discussing the problems that arise when a decedent’s property is occupied by third parties. These occupants can be relatives, friends or just tenants. However, the Executor or Administrator of an estate may need to have the property vacated so that it can be sold. Major disputes and estate litigation arises when the occupants refuse to vacate.The reason a property need to be vacated is often due to the fact that the proceeds from the sale of the property are needed to pay off existing mortgages or other estate claims.   Also, the sales proceeds may be needed so that various legacies and estate distributions to beneficiaries can be satisfied.

There are a number of avenues or remedies that a fiduciary can select to obtain possession.   Proceedings can be commenced in the local landlord-tenant Courts. These eviction cases can be time-consuming and the landlord-tenant setting may not always be the most appropriate forum for complicated estate administration issues.

Another option is to commence proceedings in the Surrogate’s Court. Typically, a case can be commenced pursuant to Surrogate’s Court Procedure Act (SCPA) § 2103 which is entitled “Proceeding by fiduciary to discover property withheld or obtain information”. This type of matter seeks a ruling from the Court directing the occupant to turn over possession of the property, whether a house or apartment, to the estate administrator or executor.   A recent Manhattan estate case decided by Manhattan Surrogate Rita Mella on June 15, 2018 concerned an SCPA 2103 proceeding to obtain possession of a decedent’s cooperative apartment from his surviving spouse.  In Estate of Kulukundis, the cooperative apartment was owned by a close corporation where the stock was owned by the executors. The Court found that the spouse was required to vacate the apartment so that it could be sold pursuant to a contract of sale. The Surrogate stated that the executors did not need the surviving spouse’s approval to sell the cooperative apartment and that any issues regarding the sale could be resolved in an accounting.

I have represented many executors and administrators in matters where it was necessary to obtain possession of estate property. It is always a good idea to consult with an experienced trusts and estates lawyer regarding these complicated estate settlement matters. Call me now for a free review if you have a question concerning probate or estate evictions.

New York Trust and Estate attorney Jules Martin Haas, Esq. has been representing clients in Surrogate’s Court and estate administration in Manhattan, Queens and Brooklyn throughout the past 30 years.   If you or someone you know is involved with or has questions about Estate Settlement, please contact me at (212) 355-2575 for an initial consultation.

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