So you have a situation when a beneficiary of estate or trust living in estate’s house and refusing to move out or pay rent. They could even be the executor or trustee.
When a beneficiary, executor or trustee is living in property owned by the estate rent-free, your legal options are different depending on who you are and who is occupying the property.
It is not uncommon for the decedent’s relatives who have been living with decedent to refuse to vacate the property after decedent’s death. These relatives may have nowhere else to go. They may not have been deeded the property but they are beneficiaries in the will or heirs under intestacy. The administrator or executor, however, may not have the personal funds to pay the mortgage or taxes and needs to sell the property. In this case, the administrator or executor can initiate a summary eviction proceeding against the beneficiary under Real Property Actions and Proceedings Law (RPAPL) § 713(7).
Sometimes, decedent’s relatives would move in after decedent’s death but before your appointment as executor or administrator. In this case, a similar summary eviction proceeding under Real Property Actions and Proceedings Law § 713 (3) can be filed.
Writing a wrongful ouster letter
If you find yourself in a situation where someone is living in an estate or trust’s house rent-free, it is important to send them an ouster letter. The letter clarifies that you object to them living in the property and would like them to start paying rent. This letter can trigger your right to get reimbursed for back rent when the house is eventually sold. Without an ouster letter, you will not have the right to back rent. It’s a good idea to retain an attorney to write this letter for you and send to the person who is occupying the property.
If the occupier is also collecting rent from tenants on the property
If the occupier of the house is also collecting rent, you are entitled to be reimbursed for your share of that rent as soon as the occupier receives it. You are also entitled to be reimbursed for your share of the collected rent once the house is sold and the proceeds are apportioned. If the occupier is the executor or trustee, you have the right to demand an accounting where the executor or trustee should show that the rent collected on the property is going to the estate.
If you are the executor, administrator or trustee
If you are the executor or administrator (which means you have been issued letters testamentary, letters of administration or its equivalent by the court), you can file a summary eviction proceeding against the beneficiary.
Eviction against family members
As a general rule, New York courts do not allow summary eviction proceedings instituted against family members. Many lawsuits have been filed, attempting to evict family members under the licensee holdover provision in RPAPL § 713(7). These property owners claim that their family members are licensees who had been given permission to stay in the property, but whose permission had now been revoked. New York courts, however, have refused to classify family members as licensees that can be evicted in a summary proceeding. Eviction of family members have to be filed as an action in the Supreme Court, a longer process which includes discovery and trial.
Eviction of executor or administrator against family members
This family member exception does not apply to evictions of an executor or administrator against beneficiaries. Even if the executor or administrator and beneficiary are related as family members, the family member exception in the licensee holdover proceeding does not apply to that situation because the family member is instituting the action against the other family member, not as a property owner but as an executor or administrator of an estate. In this case, the executor or administrator can file a summary proceeding against a beneficiary for eviction, even if the executor or administrator and the beneficiary are related as family members. A 10-day notice to quit is required for eviction proceedings where no landlord-tenant relationship existed. Your real estate lawyer will be able to assist you in filing this proceeding.
If you are filing against the executor, administrator or trustee
The situation becomes more complicated when it is the executor or administrator who occupies estate property rent-free. In this case, you can file a petition to remove the executor or administrator and for the appointment of a successor executor or administrator.
The executor or administrator has the duty to act free of conflict of interest and not pursuant to his own self-interest. The executor or administrator’s stay in the family home without paying any rent has clearly no benefit to the estate. Not only will the family home experience more wear and tear, the estate derives no financial benefit from the executor or administrator staying in the property. Using estate property, rent-free, is a ground for removing the executor or administrator.
You can also request the executor or administrator to submit an accounting before he can be discharged. You can object to the accounting and ask the executor or administrator to be surcharged for rent for the entire period he was living in the property rent-free.
If the executor or administrator still refuses to vacate the property, the successor executor or administrator, once appointed by the court, can file an eviction proceeding against the former executor or administrator.
If you need to evict a beneficiary or an executor from estate property, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York, NY, Brooklyn, NY and Queens, NY. You can send us an email at firstname.lastname@example.org or call us at 718-509-9774.