Legal Question in Wills and Trusts in New York
I hit a snag in research. I am filing a petition to remove a co-admin of estate and I'm looking for ways to prepare myself should the co-admin decide to contest the petition for his removal. It is very likely that he will. Some background info: The estate has been closed. There were two properties that we split via quitclaim deed. The mortgage company still refers to the account as "estate of" because I never refinanced. Here are the facts:
1) I alone OWN the property because the co-admin signed a quitclaim deed. I also signed a quit-claim deed to another property that the co-admin has since sold.
2) The mortgage company for my property maintains that since I never refinanced, the mortgage account remains under the Estate
3) The estate SHOULD have been closed by Form 207.42.
4) If the estate was closed, all assets have been distributed.
5) If all assets were distributed and the estate has been closed by Form 207.42, how can the property still be part of the estate? There is no more estate.
6) If there is no more estate, the letters of administration are irrelevant. Therefore there are no administrators of the estate because the estate no longer exists.
7) Now, what does this mean for the mortgage company? Does this mean
a) The mortgage account, NOT the property itself, is part of the estate?
b) The estate was not closed correctly since the mortgage account was never distributed to a particular person?
c) If the co-admin fights to remain co-administrator of the estate, will he be fighting for the mortgage account, or the property itself?
d) If I were to refinance, as owner of the property, could I do this without the approval of the co-administrator. If not, was the co-admin's sale of the property I signed a quit-claim for legitimate given that I as co-admin never approved the sale?
1 Answer from Attorneys
As I understand your facts, the confusion seems to be that the property itself has been distributed to you and is owned by you individually, but that the bank still shows the decedent's mortgage in the name of the estate, rather than your individual name, as the bank never changed its records. While this may lead to some confusion, it is technically correct since a new note and mortgage have never been provided by you, to replace the original, whether or not you refinanced the loan. My suggestion is either (1) to execute a new Note and Mortgage in replacement of those currently existing or (2) refinance, through the same or another bank. Since you are the sole owner of the property in question, the co-fiduciary would not be involved. I suggest refinancing is the better course, as in the current mortgage climate, you might get a better interest rate, if you are a qualified borrower. This is a response to an Internet question and the reply is not intended to be legal advice or as creating an attorney-client relationship.
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