New York Probate Lawyer Blog
New York Estates and Trusts Law Firms deal with issues regarding real estate all the time. The ownership of real estate can take many forms. Queens County estates and Brooklyn estates are likely to have interests in single family houses. Manhattan estates commonly contain condominiums and cooperative apartments.
Regardless of the type of real estate interest owned, estate planning and estate administration requires that these interests be handled properly. The first step in planning for probate with real estate is to determine basic facts about the property. These facts include the following:
1. Identify the owner(s) of the property. Deeds and other certificates of ownership need to be examined to be certain that the person planning his or her estate (the “Testator”) has full right and title to the property. In many instances, a person may have inherited the property from another family member and the ownership interest may be held among a number of people.
In such a case, the testator can only transfer the share of the property he or she owns. Also, if the property is owned with others, say a spouse, in joint ownership, upon the death of the testator, title to the property passes directly to the joint owner and will not be controlled by the person’s Last Will. Thus, provisions in a Last Will giving the property to third parties other than the joint owner would not be effective.
Any and all issues regarding title and ownership should be investigated and resolved at the time the New York estate plan is being developed. This will save time and avoid the hardship of attempting to solve issues during estate settlement when the testator has already passed away and is not available to provide information that could assist in resolving the title issues.
2. Determine whether the property is subject to any liens or mortgages. It is important to anticipate the effect of the owner’s death on these outstanding obligations. For example, when the owner dies, will the decedent’s estate have enough liquid assets available to continue to pay the mortgage until the property is sold. Similarly, if the property is meant to be given by the Last Will to a named beneficiary and not sold, how is the mortgage to be paid?
The type of mortgage on the property is also a subject for review. It has become more popular for senior citizens to obtain reverse mortgages which may greatly reduce the value of the property available to be given to the estate beneficiaries. Also, a reverse mortgage may be required to be paid in full upon the owner’s death and the estate may not have the liquid funds to make this payment.
While mortgages and other liens reduce the amount of assets that the beneficiaries receive, such debt obligations are also estate tax deductions that can reduce the size of an estate for estate tax purposes. Understanding the value of the testator’s real property and the equity available after the payment of all liens is essential to planning an estate.
3. Determine the appropriate manner to give the property to the intended beneficiaries. Real estate is not only one of the most valuable assets in an estate, it often has the most personal attachments among family members. The testator’s home may have been owned by family members for generations and the decedent’s children may have all grown up in the house. Selling such an asset or allowing a family member who still lives there to remain in the home for years to come can cause bitter controversies. Planning for these types of situations is important to avoid disputes that destroy family harmony and end up in probate court litigation.
The Hartford Courant recently reported in a story by Denise Buff dated February 26, 2012 about a decedent who changed her Last Will shortly before death and left the family home to only two of her four children. The two excluded children asserted that the newest Last Will did not reflect their mother’s intent that the house be inherited by all four children and that the mother’s dementia allowed the mother to be subjected to influence to exclude them.
While the best estate plan cannot always prevent unforeseen or improper conduct on the part of others, it is important to put into place a plan that you will be certain reflects your intent and maintains the family harmony to the greatest extent possible.
New York City estate lawyer Jules Martin Haas, Esq. has been representing clients in Probate and Estate Administration proceedings throughout the past 30 years. I have represented clients in many counties including Nassau, Queens and Brooklyn. If you or someone you know is involved with or has questions about a Last Will or other aspects of Probate or Estate Administration, please contact me at (212) 355-2575 for an initial consultation.