New York Probate Lawyer Blog
The death of an individual creates many diverse issues. As discussed in numerous posts in the New York Probate Lawyer Blog, an initial determination must be made as to whether a decedent died with a Last Will and Testament or was intestate. The existence of a Will requires the commencement of a probate proceeding in the Surrogate’s Court. This proceeding is typically filed by the nominated Executor. The relief sought is to have the Will validated by the Court and Letters Testamentary issued to the Executor. If there are delays expected in probating a Will, an application can be made for the appointment of a Preliminary Executor.
When there is no Will, a petition should be filed to obtain Letters of Administration. Surrogate’s Court Procedure Act Section 1001 entitled “Order of priority for granting letters of administration” provides the priority of persons entitled to be appointed as Administrator. Estates Powers and Trusts Law Section 4-1.1 entitled “Descent and distribution of a decedent’s estate” provides which heirs are entitled to inherit the estate.
Of course, many issues arise concerning a decedent and an estate. A duly appointed Executor or Administrator is essential in order to solve these matters and settle the estate. One area which is a very common source of problems relates to a decedent’s residence. If a decedent was a tenant in a property, the immediate question arises as to what becomes of the decedent’s apartment. In many metropolitan areas, such as New York City, there are a multitude of tenancy situations. A decedent may have had a lease which is subject to rent regulations such as rent stabilization or rent control. There are situations when a tenancy is not subject to any rent controls or when occupancy of an apartment is not subject to any lease at all. Particularly when an apartment is subject to rent regulation, a landlord will be eager, and many times act aggressively, to obtain control over the apartment in the hope of obtaining a higher rent from a new tenant after the decedent’s vacancy.