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Saturday, February 25, 2012

Amed Marzano & Sediva PLLC's New York appeals lawyers discuss transfer of real property upon an intestate death.

On numerous occasions, courts have stressed that real property devolves at the moment of death directly to the statutory distributees, legatees, or heirs at law without any necessary action on their part.  Thus, in Matter of Torricini, 249 A.D.2d 401 [2nd Dept. 1998], petitioner sought authorization to sell real property specifically devised to decedent’s three children in equal shares to hold as tenants-in-common.  Petitioner brought an action for a partition sale and the Surrogate declined to exercise jurisdiction of any property specifically devised because it was not part of the administrable estate.  The Appellate Division affirmed the Surrogate’s decision and held, “that title to subject real property passed directly to the decedent’s children at the time of her death.  Accordingly the Surrogate properly declined to retain jurisdiction over any issues concerning the partition or sale of the specifically devised property [.]” 

A distributee or a legatee need not take any action to vest the property into them self.  Even if the estate escheats to the State, a public administrator is permitted to sell real property, if needed, for the purpose of paying debts without need for any preceding act to vest the property into the State.  Therefore, the Surrogate’s Court in In re Clark’s Estate, 69 Misc. 2d 498 [Sur. Ct. 1972] denied granting an order directing sale of real property that vested in the State because;

Upon death the title to real property never lapses but vests in someone - distributee, specific legatee, residuary legatee, trustee, or in the case of intestate death without heirs, the State.  In re Clark’s Estate, 69 Misc. 2d 498, 499 [Sur. Ct. 1972]

In DiSanto v. Wellcraft Marine Corp., 149 A.D.2d 560 [2nd Dept. 1989], husband bequeathed his estate to his wife and to his issue if wife pre-deceased them.  The wife pre-deceased the issue, and the estate comprised of parcels of property vested in the decedent’s three sons and daughter.  Defendant, Wellcraft Marine, obtained a judgment against Edward Milano, one of the three sons, in an unrelated action and filed a notice of pendency on the parcels of property held by the estate of Harry Milano.  Wellcraft’s notice of pendency declared that an action would be commenced against the executor of the estate and the estate itself.  The property was subsequently transferred by the executor on behalf of all legatees to the Disantos’ who brought an action against Wellcraft to quiet title into themselves.  The DiSantos’ claimed that the notice failed to apprise them of the action against the legatees.  The Supreme Court held that Edward Milano had a one-quarter interest in the properties and that Wellcraft held a lien on his interest.

[Wellcraft] has an enforceable lien against the DiSantos’ property to the extent of the one-quarter interest in the property formerly held by Edward J. Milano.  As a rule, title to real property devised under the will of a decedent vests in the beneficiary at the moment of the testator’s death (citations omitted).  Unless otherwise directed by the will, an executor takes no title to the property of the testator since title vests in the devisees subject to the necessities of administration of the estate (citations omitted).  The power to sell property, without the existence of a valid trust over the proceeds, vests no title in the executor.  Rather, the property passes to the devisees subject to the execution of the power to sell by the executor (citation omitted).  DiSanto v Wellcraft Marine Corp., 149 AD2d 560, 562 [2d Dept. 1989]

The Nassau County Surrogates Court followed the same line of reasoning in In re Enrique Printing and Publishing Co., Inc. 26 Misc.3d 1035 [Sur. Ct. 2009] when it rejected the administratix’ attempt to waive her interest in property vested in her when the decedent died intestate.  The judgment creditor in this action sought an order directing the sale of real property to satisfy a judgment docketed in Queens County.  The petitioner creditor alleged that the court direct the sale of the property because the administratrix and sole distributee is not a recorded deed holder.  The Court directed the petitioner creditor to bring an enforcement action pursuant to CPLR 5221 rather than a sale of the subject premises. 

While the administratrix’s answer admits the petitioner’s allegation that title to the realty vested in her on the decedent’s death, she incorrectly concludes that since she did not take “legal title” (presumably by a deed) she is no longer vested.  However, taking some affirmative act by a distributee of realty is completely unnecessary since real property of the decedent descends immediately upon death to his distributees or devisees.  In re Enquire Printing and Publishing Co., Inc., 26 Misc 3d 1035, 1037 [Sur. Ct. 2009]

The Court directed the County Clerk to docket the judgment against the real property vested into and owned by the administratix.

          Taken together, these cases serve to buttress a well settled and long recognized tenet of law.  Title to real property vests in distributees or legatees upon the death of the decedent by operation of law without the necessity for any act on the part of the legatee, devisee, or distributee. 


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