The Disposition of Housing of the Deceased

estatesale.jpgMany people who pass away also leave behind the place in which they resided. The housing could be a rental apartment, a cooperative or condominium unit, or a house. The deceased may not necessarily have resided in the property immediately before death if they went to assisted living or a nursing home. This blog post will address the legal and practical matters arising from housing of the deceased.

If the person lived in a rental apartment, it remains to be determined whether the rental was rent-regulated or not. A rent-regulated apartment could be either rent controlled or rent stabilized and is generally found in New York City. If a surviving family member wants to continue residing in the rent-regulated apartment, he may wish to allege that he has succession rights and has the legal right to continue to live in the apartment. When the unit is not rent-regulated, the surviving family member may wish to negotiate a surrender of lease and return of any security deposit, in exchange for the prompt removal of the possessions of the deceased. Most landlords do not aggressively pursue eviction in this scenario, if the surviving family member in good faith is acting reasonably efficiently in clearing out the apartment. However, if the death occurred in the apartment and was under gruesome circumstances, the landlord may seek to have out-of-the-ordinary cleaning expenses paid by the family.

When the departed individual lived in a cooperative or condominium apartment, monthly maintenance or common charges will continue to accrue. The representative of the estate should request a delay in the submission of any default notices, pending the representative’s access to assets as needed to make such payments. So long as the cooperative or condominium board is convinced that the representative has duly and promptly applied for Letters Testamentary or Letters of Administration, additional time to obtain access to assets will usually be granted. In no event do we recommend that the estate representative pay such charges from her own personal account.

Attention should be paid as to whether the governing documents of the cooperative or condominium allow any family member to live in the apartment, even if it was left to such person in the Will. For instance, some proprietary leases provide only for those of certain relationships, such as spouse, or financially responsible family members to be able to request the transfer of the stock certificate and proprietary lease to their name without submitting to the board approval process. If the surviving family member does not match such relationship category or cannot demonstrate financial responsibility, then the family member seeking to receive the transfer of the apartment will need to submit to the regular board approval process.

Unless surviving family members wish to continue living in the cooperative or condominium apartment or house, arrangements need to be made to sell the housing. A qualified attorney should guide you through the process. We are familiar with numerous real estate agents who are available to list the housing for sale. Some of the real estate agents are particularly well-suited to certain geographic locations or types of properties. If the housing needs repairs, painting or staging services to make it present more favorably for sale, we assist in coordinating same. There are cases where we have effectively negotiated the completion of services, such as painting needed to prepare the housing to sell, with the payment being made from the closing proceeds. Of course, it remains the responsibility of family members to remove personal items such as photographs and clothing and valuable possessions prior to the property being shown.

Once the housing is presentable for sale and an offer is made, we coordinate the closing process. A requirement in any closing is proof that Letters Testamentary or Letters of Administration have been issued by the Surrogate’s Court , authorizing the person who will sign the documents at closing. Further, a review of the Will may be necessary to confirm that the named beneficiary of the housing or of the estate receives the closing proceeds.

We welcome your inquiries in this area.