Estate Administration

October 24, 2024

Eviction Action or Ejectment Action?

Our firm is involved in many situations in which one party seeks to remove another party from property, such as a house, cooperative, or condominium unit. However, the situation underlying the attempted removal will often determine the correct legal method for effectuating said removal.

The two main legal remedies are an eviction action and an ejectment action. Keep in mind that there may be situations in which an experienced attorney needs to use his legal judgment to determine which type of action to bring. First, we will cover an eviction action.

Eviction actions are generally used in ordinary landlord-tenant matters. In most cases, there is a tenant who is renting property from the property owner, who is the landlord. There usually is a written lease, but not in all situations. There are generally two types of eviction actions. The first is a non-payment, in which the tenant has failed to pay her rent. The second is a holdover, in which the tenant’s lease has expired, or a situation in which the tenant never had a lease and has a month-to-month tenancy.

October 1, 2024

Legal Issues Raised by the Death of Pete Rose

By Weiss & Weiss

Baseball fans learned of the recent passing of Pete Rose a/k/a “Charlie Hustle.” Rose was most closely identified by his championship playing days for the “Big Red Machine” Cincinnati Reds. He was a divisive figure in that he was known as the Hit King for having the most hits of any baseball player as well as other achievements that would have clearly allowed for his election to baseball’s Hall of Fame. He was permanently banned from baseball and excluded from Hall of Fame ballots for gambling on the outcome of baseball games. This post will address the legal issues raised by Mr. Rose’s death.

The pride of Cincinnati also led a colorful personal life. He was married and divorced twice and had a girlfriend at the time of death. Since he was not married at the time of his death, his girlfriend would not stand to inherit from his estate unless he had a Will and left assets to her. Rose had several children from his marriages. He may have potentially fathered other children from his illicit romantic affairs, some of which may have been conducted with underage girls. If Rose did not have a Will, his children (marital or not) would inherit his estate.

Once Rose was banned from baseball, he made a living largely through the sports memorabilia business. He sold autographed baseballs and other items to his remaining fans. The memorabilia that he amassed and kept from his playing days would potentially add significant value to his estate. His estate fiduciary would need to determine the best means by which to dispose of such valuable personal property, unless Rose had a Will providing for direction for its disposition.

September 24, 2024

Legal Issues Relating to the Sale of Inherited Property

By Weiss & Weiss

Our firm has often been consulted by clients who inherited a house from their parents, and wish to sell the property, as they may have moved out-of-state, and the property became vacant after the passing of the last parent.

Usually, this is a straightforward transaction, which often requires legal assistance in acquiring legal authority to sell the property as part of an estate. This involves experienced counsel filing for letters testamentary (if there is a will) or letters of administration (if there is no will). Once the Surrogate’s Court issues the proper legal document, then the sale can proceed.

However, there is often another issue, which may become known to the surviving children only after their parents’ death. It is possible that the parents borrowed against the property, even after the original mortgage that they took out to purchase the premises was paid off. Often a reverse mortgage is taken out by the elderly parents, in order to raise funds to continue to live in the house. Generally, such mortgages are only available to homeowners over the age of 62. Once the loan funds are disbursed, there are no monthly payments. The full amount of the loan would then be due after the death of the last borrower.

July 15, 2024

90210

By Weiss & Weiss

News outlets recently reported the tragic death of Shannen Doherty at the young age of 53. Ms. Doherty was best known for playing “Brenda Walsh” in the series “Beverly Hills, 90210.” She was diagnosed with cancer in 2015 and bravely fought against the disease until her death. The actress was survived by her mother, brother and estranged third husband, as well as her dog. She did not have children. Knowing that she was terminally ill allowed her to make appropriate personal and legal plans.

It has been reported that Ms. Doherty made her funeral wishes and preference for the disposal of her remains known to those close to her. The actress handled these aspects properly. It is not preferable to request that your attorney include these preferences in a Will for the following reasons. The survivors are most likely to have the funeral conducted and the remains disposed of before locating a Will or other written directions from the deceased or her attorneys. Then, it may be discovered too late that these activities were conducted in a fashion contrary to the desires of the deceased.

Ms. Doherty had an extensive furniture collection and more personal belongings than she needed. She wanted to make things “easier for her Mom” by selling her belongings as she prepared to pass away. Also, if her personal property in effect was converted to cash through sale, arguments over who would receive her personal property could be avoided.

May 17, 2024

Breaking News: “Transfer on Death” Deeds Become Option in New York

By Weiss & Weiss

We would like to inform our readers that Transfer on Death Deeds (“TOD”) will become an option for property transfers in New York as of July 19, 2024. Real property such as a house, condominium unit or vacant land is currently transferred by deed. There are currently various types of deeds available for property transfers in New York State. A Referee’s Deed applies to the transfer of property by the Court appointed Referee after a foreclosure sale. An Administrator’s or Executor’s Deed is used by the fiduciary appointed by the Surrogate’s Court in an estate matter to transfer property to the proper person designated by the Will or who is entitled to the property according to intestacy. A seller in a standard real estate transaction will deliver a deed based on the level of quality of title promised to the buyer. Such deeds may be either a quitclaim or warranty deed, or a bargain and sale deed with or without covenants.

Our readers may be familiar with transfer on death designations on bank accounts whereby the account will automatically go to the designee upon the account owner’s death. Changes to the beneficiary can also be made during the account owner’s lifetime. TOD deeds will operate in much the same fashion. Such deeds will need to be signed before two witnesses and notarized before they are recorded before the owner’s death in the clerk’s office in the county in which the property is located. Similar to the standards in making a Will, the property owner needs to have capacity, not be under fraud or duress, or unduly influenced. The property owner retains control over the property and can sell or encumber the property with a mortgage. The designee of the property takes it subject to any liens or mortgages to which the property is subject at the property owner’s death. The transfer lapses if the beneficiary does not survive the owner, so it is necessary to provide for such a potential event by designating an alternate beneficiary in the TOD deed or by having a qualified attorney provide for such an occurrence in other estate planning documents. Further, if two joint owners transfer property by TOD deed, the transfer to the beneficiary is not effective until both joint owners pass away.

The property owner can revoke a TOD deed by a properly notarized and recorded document and make a new beneficiary designation on another TOD deed, providing more control than a deed reserving a life estate. It is important to note that a TOD deed cannot be revoked by a provision in a Will. Transfer on death allows for the avoidance of a probate or administration proceeding as to that asset, which could prevent the delay and expense of an estate proceeding and avoid a contested estate to the extent that particular assets already have ironclad beneficiaries. With all transfer on death designations, the property needs to be owned at death for the transfer to the beneficiary to be effective.

March 15, 2024

The Day Has Come: Amended Property Condition Disclosure Law Becomes Effective

By Weiss & Weiss

We have previously posted concerning a significant amendment to the property condition disclosure law in New York. Previously, sellers of residential real estate were required to complete a detailed questionnaire concerning property conditions or issue a $500 credit at the closing for failure to deliver the document. Many sellers, especially those in downstate NY, as serviced by our firm, preferred to issue the $500 credit instead of completing the form.

The new law, which becomes effective on March 20, eliminates the seller’s option to issue the $500 credit. Instead, it requires the completion and delivery of the form to the buyer before the contract is signed. Further, it contains more extensive information concerning flood risks and history and whether the property has been insured against flood risk. This author suggests that the amendment was motivated by devastating floods and water damage that have affected some home buyers in recent years, with the main goal being disclosure of flooding. The legislature went further than adding flooding disclosures and moved towards requiring full disclosure by the seller.

It remains to be seen how real estate professionals will handle the amended law. Although sellers are expected to complete the form, real estate agents may end up providing assistance. It may be preferable that sellers have the completed form ready at the same time that the accepted offer is provided to the seller’s attorney, who will prepare and deliver the proposed contract to the buyer’s attorney, so as not to delay the process of obtaining signed contracts as soon as possible. Otherwise, sellers may lean on their attorneys for advice in completing the form.

December 4, 2023

Golden Bachelor or Gold Digger?

By Weiss & Weiss

Many viewers have been intrigued by the popular television series The Golden Bachelor, in which an older widower selected the second love of his life as his fiancee. The widower was portrayed as absent from the dating scene after the death of his wife. On the eve of the final episode, an article was published describing the bachelor’s relationship after the death of his wife with a live-in girlfriend and unsavory details about the golden bachelor (Gerry). For instance, Gerry’s thrifty side allegedly caused him to “go dutch” on all expenses and activities with his girlfriend.

One distinguishing factor between the show’s two finalists (Leslie and Theresa) was that Theresa may be wealthy. During their last date, Gerry asked Theresa about her professional life. She stated that she was a homemaker before she dappled in the stock market. She was successful trading stocks for herself and then started a career as a financial services professional. Gerry, who has been reported to have a questionable professional history, was quite impressed by this information. Perhaps the golden bachelor is actually a gold digger seeking wealth. This post will examine estate matters to be addressed on behalf of older individuals such as Gerry and Theresa, aged 72 and 70 respectively.

A newly engaged couple with children and grandchildren from a prior marriage should seek the advice of an experienced attorney. It would be prudent to draft estate documents whereby the second spouse would not inherit outright, but would receive income during lifetime from assets held in a testamentary trust, with the balance to be delivered to the children or grandchildren of the first marriage. This plan will protect the spouse’s family of the first marriage from a second spouse who may be motivated by acquiring wealth from the new spouse.

November 1, 2023

I’ll Be There for You: Legal Issues Raised by Beloved Actor’s Death

By Weiss & Weiss

The recent death of Matthew Perry, best known for playing “Chandler Bing” on the popular sitcom Friends, has deeply affected many of our readers. Although Perry was known for his fabulous sense of humor, the dark side of his life was notable for his addiction to alcohol and drugs, almost causing his death numerous times. His painful life was documented in his memoir entitled Friends, Lovers and the Big Terrible Thing.

The Emmy nominated actor may be “The One with Estate Issues.” Although this author is not privy to the details of Mr. Perry’s estate, this post will discuss some of the estate concerns that could arise. Mr. Perry died at his home in California. Most if not all of Mr. Perry’s estate will be determined by California law as a result. However, if he happened to have owned a pied-a-terre in Manhattan, the disposition of that property would be determined by an ancillary proceeding in New York after the completion of any California proceeding. The remainder of this post will address the legal result as if Mr. Perry had died in New York, since the legal matters covered by this blog deal with New York law.

It must be determined whether or not Mr. Perry had a Will. If there was a Will, it would be subject to a probate proceeding, whereby the Will would be submitted to the Surrogate’s Court and Letters Testamentary would be issued to the named Executor. In order for a Will to be valid, the testator (person making the Will) needs to have mental capacity and not be impaired by alcohol or drugs when signing the document. Certainly, a person such as Mr. Perry may have had issues concerning mental capacity when signing a Will. However, experienced attorneys who properly conduct the will execution ceremony will not proceed if their client appears impaired at the time of signing. Likewise, the witnesses should simultaneously sign a “self-proving affidavit” whereby they are confirming that the testator was of sound mind and under no physical or mental impairment that would affect his capacity to make a valid Will.

July 28, 2023

From Rags to Riches: Legal Issues Raised by the Death of Tony Bennett

By Weiss & Weiss

Tony Bennett was beloved by those young and old not only as a talented singer, but as a World War II veteran and civil rights icon. His recent death at the age of 96 was not unexpected. This post will identify the legal issues that may be raised when a person such as Tony Bennett passes.

Mr. Bennett could be considered to have been in a New York State of Mind, having been born and dying in New York State. He was considered to be well-liked by all, except for potentially his two ex-wives who may have said “I’ve Got You Under My Skin” as they completed their divorce proceedings. We have posted previously as to whether an estranged or divorced spouse has the legal right to inherit. Even a promise to include an ex-spouse in one’s Will, as may be desirable in resolving a divorce proceeding, is not enforceable in New York. Unless Mr. Bennett had explicitly left assets to his ex-wives in a Will or Trust, these ex-spouses would not have a valid claim to his estate.

The admired crooner was married to his third wife at the time of his death. Potentially his most recent wife had a conflict with his four children, whose mothers were either his first or second wives. In addition, two of his four children assisted Mr. Bennett in his career, so he may have wanted to leave them more assets or they stand to gain other financial benefits from having worked alongside their father. It should be noted that Mr. Bennett’s two daughters were also the children of his second wife and but were born before their marriage. If Tony had no Will, an estate administration would need to be conducted and proof of paternity would need to be established so that his daughters could legally inherit from his estate.

June 1, 2023

Our Obsession with Succession

By Weiss & Weiss

This post comes with a “spoiler alert” warning. Like many, this author has become obsessed with the Max show Succession, not merely as a television viewer, but for the legal issues raised by the storylines. We will discuss the multiple legal issues covered in the Emmy award-winning series.

The jaw dropping images of real estate are practically a character on the show. The townhouse on Fifth Avenue across from the Metropolitan Museum of Art was the primary residence of Waystar/Royco’s founder and patriarch Logan Roy. The home was shared with his third wife, who obtained the property in their divorce. After Logan’s death, Marcia and Logan’s oldest child Connor were visiting the home. Marcia and Connor started a discussion whereby Connor expressed interest in buying the home from Marcia, who said that she was looking for sixty to seventy million dollars. Connor said he would pay sixty-three million dollars, and they verbally agreed to the deal. A verbal agreement to sell real estate is not binding in New York State. The statute of frauds requires that contracts pertaining to real estate be in writing. Marcia could have backed out of her agreement to sell the property to Connor. However, Connor and his wife were in control of the townhouse in a later episode, so Marcia must have followed through with her oral agreement to sell the property to Connor.

Estate matters also figure prominently in the series. Connor introduces a “sticker system” to distribute personal property in the townhouse that he purchased. Logan’s children were to affix stickers to personal property in Logan’s townhouse to indicate which items they wanted. Then, the “second tier bereaved,” such as Logan’s last mistress, would have an opportunity to select items. While this may be a relatively good method with which to distribute personal property, the question arises as to why Connor was in charge of this process. Was he nominated as Executor of Logan’s estate? It would not be realistic for Connor to have been officially appointed as Executor within days of Logan’s death. Another possibility is that Marcia owned these items as part of the acquisition of the townhouse in her divorce and that she decided to sell the items to Connor along with the townhouse.