New York Real Estate Lawyers Blog
Clients consulting our firm with respect to will drafting often ask how to leave a house or cooperative apartment to potential heirs when there may be more than one surviving child. Perhaps a person owns a house and wants to leave it to all three of her children in her Will. Concerns arise when one of the children has been living in the house all of his life or only one of the children frequently enjoys the use of the house as a vacation home. In either case, the remaining children have no use for the property. The well-intentioned parent may be inadvertently causing a family dispute after her death. If the child who wants the property does not have the financial ability to buy out his siblings, by mortgage financing or otherwise, the remaining siblings may have no choice except for engaging an experienced attorney to commence a partition action.
The person making the Will also needs to determine whether she wishes for her children to inherit in equal portions. For example, if the house is of particular interest to one child and there are other assets available to be distributed to the other children, the parent may decide to leave the other assets to the other children, so that each child receives substantially similar disbursements.
We have reviewed documents prepared by others providing that a person can continue to reside in the house until a particular triggering event such as vacating the house or death, after such event those who will inherit the property can have full access and sell it if they wish. Such a document may provide that the occupant pay the property expenses while occupying. This arrangement is not one that we recommend because it delays the delivery of the asset to the intended owner(s) and the occupant may not meet property upkeep demands, which provisions are difficult to enforce.
Cooperative apartments offer additional layers to the issues discussed thus far. Although a person can leave a cooperative apartment to her children, the cooperative board maintains control over who may own and reside in the apartment. Each case would be determined by the provisions of the cooperative’s proprietary lease, which generally allow a transfer to a financially responsible family member. Potentially, one of the surviving children could be too young or not yet established in his career, making him unlikely to be approved by the cooperative’s board. A scenario could arise whereby some, but not all, of the children are approved by the board. Partition actions can also be maintained when the property involved is a cooperative apartment.
It may be more prudent for the Will to provide that the house or cooperative apartment be sold and the proceeds be divided between the surviving children in the proportions preferred by the person making the Will. Of course, the property involved can also be sold before death, particularly if the owner is no longer using the property. Our attorneys frequently discuss and advise our clients regarding the issues raised in this post and welcome your inquiries.