Sale of Estate Property, Records Inspection, Will Construction

August 12, 2019

As August moves along, and the summer sadly draws to an end, this month’s column takes a different approach by addressing two uncontested matters of interest affecting trusts and estates practice, and a litigated issue addressed to the construction of a will.

Appellate Division Addresses Sale of Estate Property

Before the Appellate Division, Second Department, in Matter of Kahn, N.Y.L.J., June 7, 2019, at p. 25, was an appeal from an Order of the Surrogate’s Court, Kings County, which denied a petition by the administrator of the decedent’s estate to remove the restrictions on his letters of administration that prohibited him from selling real property owned by the decedent at death.

In support of his application to the Surrogate’s Court, the administrator represented that the real property in issue was encumbered by an $870,000 mortgage, together with interest and penalties, and was in foreclosure. Further, he alleged that the fair market value of the premises was $325,000, and that it was in need of repairs that exceeded $130,000. Accordingly, the petitioner sought authorization to conduct a short sale of the property for the sum of $308,750.

The Surrogate’s Court denied the petition finding, inter alia, that the petitioner had not made an adequate showing that the proposed sale was in the best interests of the estate. Specifically, to this extent, the court noted that while the petitioner had submitted, inter alia, the lender’s letter approving the proposed sale, an appraisal of the property, substantiation for the cost of repairs, and a waiver and consent executed by a distributee, he had failed to submit evidence establishing the existence of the mortgage or the sum owed, proof that the property was in foreclosure, or that there were no other distributees interested in the relief requested.

Ilene Sherwyn Cooper is a partner with Farrell Fritz, P.C. in Uniondale, where she concentrates in the area of trusts and estates. She is the past-chair of the New York State Bar Association’s Trusts and Estates Law Section.

Reprinted with permission from New York Law Journal, Monday, August 12, 2019, Vol 262 – No. 30

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