Articles and audio on New York Probate Real Estate

E243 Heir Won’t Leave the House

E243 Heir Won’t Leave the House


When one of the heirs won’t leave the family home, what can you do? It’s a pretty common situation. For example, mom passes away leaving three adult children. One adult son was living with her when she passed away, and he doesn’t want to leave.

Why heir won’t leave

Why heir won’t leave

The top reason is pretty straightforward: it’s like having free or reduced rent. Sometimes there’s the feeling of entitlement. As in, “I was the one taking care of mom during her last years, so what’s the big deal if I stay in the house?”

Then, there’s that litany of “dog ate my homework” type of excuses: I have an injury and can’t move right now; I don’t want to move my kids in the middle of the school year; I’m too busy to deal with a move, etc. We’re not saying these excuses are justifiable, we’re just saying that we’ve heard it all!

Can you evict an heir?

The short answer is yes, but it is an uphill battle. Evictions generally tough. You deal with notice requirements, assumptions that tenants have rights, extensions, etc. It could take many months to years to evict a tenant in a normal situation. Add to that, the complication that the heir is partial owner. In our example where mom passed away with three surviving children, that adult son is still an heir to one-third of the estate, even if he leaves the home. So, now it’s psychologically more than just evicting a tenant, it’s evicting a one-third owner.

Can you evict an heir?

In addition to a frustrating situation, evicting your sibling is probably pretty awkward! (“Happy Thanksgiving, sister; pass the turkey. And oh, yeah – here’s your eviction notice”). A situation like this can devastate families. A professional tip to avoid the awkwardness is to use someone else as the “bad guy,” such as a realtor or professional executor. If the home is a condo or part of a homeowner’s association, maybe make a call to the manager to discuss the eviction. If this works, it can save a lot of money in legal fees. The quicker the eviction is taken care of, the less money wasted. It’s expensive to let someone reside in a home for “free.”

How to buy out heirs

How to buy out heirs

More often than you’d think, the resolution is to pay the heir to leave. It doesn’t feel great to pay someone who is supposed to leave anyway but take a look at the cost-benefit analysis. It might be cheaper than the headaches, legal fees, mortgage payments, etc. As much as you might not want to pay him, it’s probably the best solution. It could also make those Thanksgiving dinners less tense!

Paying an heir to leave doesn’t mean you have to start with the highest number. Maybe start by offering to pay for the moving costs. Then offer more, as needed, until he actually leaves.

This is where having a professional executor comes in handy – he or she can do the awkward work for you. If you are interested in learning more, check out my book on Amazon, “How to Hire an Executor.”

 

E224 3 Common Probate Real Estate Mistakes

E224 3 Common Probate Real Estate Mistakes


Here are three recent, real world, case studies of common probate real estate mistakes. Hopefully, you’ll learn how seemingly small errors can quickly snowball into huge, expensive problems, which you definitely want to avoid!

Letting the home fall apart

Letting the home fall apart

In the words of Benjamin Franklin, “an ounce of prevention is worth a pound of cure.” In our example, there is an older citizen who began to decline (this is normal especially for Solo Agers), so keeping up the house was a low priority. The family was focused on scrambling with doctors, Medicare, nursing homes, social workers, etc. So, it’s common to overlook a leaky pipe at the house and leave it untended.

After this particular senior passed, I visited her apartment. I found a bathroom covered in fuzzy, black mold from water damage. So, a little bit of water damage left unattended for months or years is now costing tens of thousands in remediation damage. Mold is a big red flag when trying to sell real estate. You have to take care of that before anyone would be willing to buy it. It could have been solved long ago with a $10 wrench or plumber visit. Now, that $10 fix could cost $10,000.

DIY renovations

DIY renovations

Do It Yourself renovations have become popular. Too many heirs watch too much HGTV! When someone dies, there’s almost always a nephew who sees a fixer upper and wants to “Flip this House.” Too often, they have no idea what they are doing.

In this case, the son-in-law started renovations that were actually not too bad looking. But he did not get the correct permits and authorization paperwork, so he had to stop in the middle when the co-op management found out. Now we’re trying to sell a half-finished home. The toilet is literally in the middle of the bedroom.  We probably would’ve been better off if we just sold it pre-renovation, if you take into account the delays we are now experiencing. At least it would have been intact.

Tenants in probate property

Tenants in probate property

We’ve talked before about how tenants can be a nightmare in probate (E157 How to Deal with Nightmare Tenants in Probate) Tenants of estates don’t respect the need to pay rent. They pay if and when they feel like it. But it’s even worse when the estate suddenly gets tenants who weren’t even there before the homeowner passed. Here are two current, frustrating examples:

Example 1: The home aid won’t leave. We had a Solo Ager who needed help at the end, so he hired a home aide through Medicare/Medicaid. After the man passed away, it’s understandable that the aide needs a little bit of time to figure out where she’s going. But she didn’t leave! The heirs are don’t like conflict and were not sure what their legal rights are, so they didn’t do anything about it. Now, every day that passes, the aide is slowly creating a sort of tenancy! It will be harder and harder to get rid of her. We’ll probably have to evict her, and that will incur costs and time.

Example 2: A decedent passed away with an investment property and he was a small business owner. Since he passed away, the business shut down. The heirs felt bad for an ex-employee and allowed him to stay in the decedent’s condo! So now, a problem that didn’t exist before has been created. The heirs also gave him extremely low rent. Of course, he won’t be leaving now without a court-ordered eviction! The heirs were well-intentioned but created a huge problem for themselves.

How can you avoid these mistakes? Hire an excellent probate lawyer to guide the executor, or better yet, consider a professional executor to run the show. A professional executor would know not to make these mistakes and won’t make decisions based on emotions tied to the property.

Check out my book on Amazon, “How to Hire an Executor,” so you can choose the person who is the best fit.

E203 Why You Need an Experienced Probate Lawyer

E203 Why You Need an Experienced Probate Lawyer


Linda spent six months working with a general lawyer (meaning someone who practiced personal injury, litigation, and a dash of probate on the side). There was not much progress in those six months, so Linda became frustrated and transferred the case to us. Sadly, we had to basically start from scratch, because the general lawyer did essentially nothing.

What causes probate delays? Bad lawyers

What causes probate delays?

In Linda’s situation, six months went by and it was as if nothing happened in her case. One of the reasons for the delayed probate was because the general lawyer did not know what preliminary Letters Testamentary were. An experienced probate lawyer would have noticed right away that Linda had a complicated probate and would have immediately filed for preliminary Letters Testamentary. If this had been filed immediately, Linda could’ve started “executor-ing” months ago.

Another reason probate can be delayed is drafting the Petition wrong. In Linda’s case, the general lawyer didn’t understand which family members must be notified, and therefore hadn’t even begun collecting their contact information.

Lastly, probate can be delayed because a general lawyer might not realize that the Will isn’t properly witnessed. (As a side note, this is a good reason to find an experienced attorney to draft your Will). Getting the correct witnessing on a decedent’s Will takes a lot of time, including tracking down the witnesses and having them sign affidavits. An experienced probate lawyer would notice the incorrect witnessing and get started on the correction process immediately.

As with any practice, if a lawyer does not have much experience in a certain area of law, he or she will probably miss important details and cause delays.

When a lawyer gives bad advice

When a lawyer gives bad advice

In Linda’s situation, her deceased relative owned an income-producing property, and the general lawyer told Linda not to collect rent anymore from the tenants! This led to non-payment and problems with the tenants, which will cost the estate more money to work out. Instead of listing the house on the market during the summer, this lawyer’s bad advice means that Linda now must winterize the house. With proper legal advice, the house could have been sold and done with before the cold. In summary, bad legal advice causes more stress and aggravation for the client.

How can you avoid all this? Shop around: Compare lawyers, call their office, and visit their websites. Make sure you’re working with an experienced probate lawyer from the beginning.

Request your free consultation

reCAPTCHA is required.

Sign-up for your free consultation using the form above, and I’ll be happy to email you a free chapter from Anthony’s best-selling bookHow Probate Works.”

E66 5 Myths About Probate Real Estate landscape

E66 5 Myths About Probate Real Estate

Doesn’t it feel like everyone is telling you it’s “so easy” to make money with probate real estate?

So let me share the real deal, from the perspective of a professional executor and probate attorney. That means I’m the guy actually selling the probate real estate.