New York Probate Lawyer Blog
The probate of a Last Will and Testament validates the provisions contained in the Will. The various Will directions can take many forms. There can be dispositions of specific dollar amounts to beneficiaries, as well as dispositions based upon a stated percentage or share of the estate or of all assets. In addition, there may be directions to give a specifically identified asset to a specifically named beneficiary. Estate settlement and the administration of an estate by the Executors is controlled by the various mandates found in a Will.
Specific dispositions of property may present issues in finalizing an estate. As a general rule, an executor is not authorized to sell property that is specifically devised or bequeathed to a named beneficiary without authority from the Surrogate’s Court or authority set forth in the terms of a Will. In the event a fiduciary needs to sell such specifically gifted property to pay estate expenses or other obligations, permission may be obtained from the Court. It is interesting to note that Surrogate’s Court Procedure Act Section 1412 entitled “Preliminary letters testamentary” grants to a preliminary executor all of the powers of an administrator except that they do not have the power to sell or dispose of specifically devised or bequeathed property without the written consent of the person to whom it was gifted.
There may be situations during the course of estate administration where the restrictions regarding specific dispositions of property impact an estate. Such a situation recently arose in a Bronx estate and was the subject of a decision by Bronx Surrogate Nelida Malave-Gonzalez in the Estate of Armstrong, decided on July 6, 2023.
In Armstrong, the decedent left a Will which contained a number of specific devises to his children and spouse. The co-executors of the estate wanted to sell one of the properties claiming that the proceeds of the sale was necessary to satisfy estate obligations as well as a claim by the spouse pursuant to her elective share. The beneficiary whose property was being sought for sale opposed the executors’ request.
The Court analyzed the various rules regarding the sale of specifically devised property as well as the terms of the Will and the authority granted to the executors of the Will. The Court concluded that while the executors could maintain and manage the property during the course of estate settlement, the executors did not establish any reason for the sale of the particular property selected by the executors. Also, the Court noted that under the elective share statute, the specific devisee had a right to satisfy his elective share obligation from other funds. Since the values of the estate assets and estate obligations were still uncertain, the Court determined to consolidate the pending sale issue with the pending accounting proceeding for a more complete determination.
As can be seen from Armstrong, executors and beneficiaries may be confronted with complicated issues arising from an estate. It is important to have guidance from an experienced trust and estate lawyer when confronted with these matters.
I have represented clients in estate and Surrogate’s Court cases for over forty (40) years. Do you have a question regarding an estate? Call Me Now for a free confidential review of your estate matter. We offer 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.