Let’s say an executor is managing an estate that has a couple of beneficiaries who are inheriting a house, and one of them is living in that house and is refusing to move out. Can the executor evict that beneficiary?
The executor will face somewhat of a Catch-22. When the executor of the estate asks the Landlord-Tenant Court to evict the beneficiary, the Landlord-Tenant Court might refuse, saying that the beneficiary has a right to stay in the house as a partial owner. When the executor asks the Surrogate’s Court to ask the beneficiary to leave, the Surrogate’s Court will say that it’s not within their jurisdiction to evict someone from the property, you should go to Landlord-Tenant Court.
Faced with this run-around, the executor might have an option of instead of evicting the beneficiary, filing a partition proceeding in the Surrogate’s Court or in the basic trial court (called Supreme Court in New York). Because what the executor is dealing with is not an eviction but a determination of each beneficiary’s right in property. Once each beneficiary’s right is determined, instead of evicting a beneficiary, the court will appoint a receiver who will sell the property at auction. Once the receiver sells the property, takes his cut and gives the rest of the money to the estate, the executor will be able to distribute the money to beneficiaries of the estate.
It will then be up to the new owner to evict the beneficiary. The new owner will not have a Catch-22, unlike the executor. Because the beneficiary is no longer a partial owner, as the house was sold at auction by the receiver. The beneficiary is now considered a squatter, and evicting him will be the same as evicting a squatter in New York – it will take some time, but is doable.
Filing a partition proceeding is not the most desirable course of action. A partition proceeding has many issues:
- takes a long time
- involves expensive estate attorneys’ fees
- involves paying a receiver a percentage of the sales price of the house
- will net a very low price for the house because it’s a house sold at auction with a squatter in it
A cheaper option would be to explain all of this to the beneficiary who is in the house and make a deal with them, perhaps signing an agreement committing to give them a bigger share of the house then they would otherwise have been entitled to. It’s not exactly fair, and it doesn’t allow the executor to evict the beneficiary, but it does save time and money for everyone.
You can see this in the court opinions. In Matter of O’Hara, the Judge of the Queens Surrogates’s Court Peter Kelly wrote that the Surrogate’s Court did not have the jurisdiction to help the executor evict the beneficiaries residing in the estate property. In his opinion, Judge Kelly suggested that the executor turn to the Supreme Court instead, with a partition proceeding. Judge Kelly explained that Title to real property devised under a will vests in the beneficiary at the moment of the testator’s death  Unless otherwise directed by the will, the executor does not take title to the real property of the testator since title vests in the devisees subject only to divestment pursuant to court order to pay estate debts. 
If you are faced with a situation where an executor is thinking about evicting a beneficiary or are involved in a partition proceeding and you need the services of a New York estate lawyer, you can give me a call. My name is Albert Goodwin and you can reach me at (212) 233-1233.
 Matter of Seviroli, 31 AD3d 452, citing Waxson Realty Corp. V. Rothschild, 255 NY 332, Barber v. Terry 224 NY 334, and Matter of Payson, 132 Misc 2d 949
 See, DiSanto v Wellcraft Mar Corp, 149 AD2d 560,562 citing Matter of Rich,27 Misc 2d 364,371
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