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.
Post-death eviction proceedings concerning a decedent can be very complicated. A recent example of this type of matter is reflected in an eviction proceeding in Kings County Civil Court entitled ENY Development LLC v. Youmans, decided by Judge Juliet P. Howard on May 7, 2024. In ENY, a person had been a tenant in a rent-stabilized apartment. After the person died, the landlord filed a petition for a proceeding to obtain possession of the apartment. The only named respondents were John and Jane Does. The petitioner alleged that the decedent did not have a Will and, in effect, that the unexpired leasehold interest passed to John and Jane Does, causing the lease to be expired. After another family member appeared in the case, counsel for the family member sought to dismiss the eviction proceeding on a number of grounds. In reviewing the various facts and legal principals, the Court noted that after a tenant of record dies, a lease for a term of years becomes the personal property of the decedent’s estate and does not otherwise terminate. The Court also found that a decedent’s estate must be named as a party respondent which requires the appointment of an estate representative. Since the landlord failed to include an estate representative as a necessary party, the eviction proceeding was dismissed.
I have been representing parties in estate matters including eviction and other property disputes for over forty (40) years. Do you have an issue regarding an estate or guardianship case? Call Me Now for a free confidential review of your issue. 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.