Legal Question in Wills and Trusts in New York
Is real property considered part of an estate
My Dad recently passed away. He
had a will and one of the things
included in his estate was the house
he lived in. Our estate attorney is
telling us that the transfer, or sale,
of the house is not part of the fee he
is charging us to handle his estate
because it is real estate, and
therefore a seperate charge to
handle. This makes no sense to us
as it is part of his estate. Is this
true, or are we being had? We are
being charged a lot of money and he
basically hasn't done any of the
work, we have done all paperwork
involved to transfer everything to
benificiaries. We just don't know
how to transfer the house.
4 Answers from Attorneys
Re: Is real property considered part of an estate
Homestead property is not considered part of the probate estate. An Order determining homestead status is enough to vest clean title in the intended beneficiaries. If a subsequent sale by the beneficiaries is contemplated, then this is a separate matter. If you do not agree with the fees charged then you should go to another realestate attorney to handle the matter.
Re: Is real property considered part of an estate
The transfer (sale) of the house is a separate procedure from the probate procedure. Unless the transfer of the house was included in the initial retainer agreement, it is a separate legal transaction. Of course, you are free to hire a different attorney to handle the sale for you.
Re: Is real property considered part of an estate
If the probate of the will was in Florida and the house in NY, a separate ancillary probate in NY will be required. It is not a difficult procedure. Good luck.
Re: Is real property considered part of an estate
I am a little confused by the varied answers to your question, so I need some clarification. Where is the property located (NY or FL) and in what State was your father a resident of when he died? If both locations are NY or FL, the Will should suffice and all that is needed is a simple Deed from the Executor or Personal Representative to the beneficiaries. If he resided in one State and the property is located in another, a separate proceeding may be required in the State where the property is located (called Ancillary Proceedings) and if he was a NY resident, but had property in Florida, this gets a little more complicated. I know as my mother lived in NJ but had real estate in Florida; thus requiring 2 separate probate proceedings, one in each State. Florida probate is more complicated and more expensive, and, to my mind, is a windfall for Florida attorneys. If you contact me directly and give me all of the facts, I can properly advise you on how to proceed. Also, if the estate is subject to possible estate or inheritance taxes, it gets even more complicated. This may require that I know the approximate value of all estate assets, wherever located.
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