Estate, Powers and Trusts, § 3-3.8: Validity of a Purchase of Real Property Notwithstanding its Disposition by Will

In the years after a testator executes his (or her) property there may be changes in circumstances that results in a change in property that is actually in the estate at the time of the decedent’s death. As a result, there may be disputes during probate or even after probate related to who has the legal ownership to property that was at one time part of an estate. One such situation involves real estate that was disposed of in a will, but was also purchased from a distributee. If you are involved in a dispute related to the title of real estate that was disposed of in a will, contact an experienced New York estate litigation attorney who understands New York Estates, Powers, and Trusts Law.

New York law protects bona fide buyers who purchase real estate from a distributee of the deceased owner of the property, pays good consideration, and who is not aware that the decedent had specifically devised the realty in his or her will. If this happens, the law provides that the buyer is protected unless the will is admitted to probate within two years of the decedent's death.

Issues relating to who has the legal title to property and who has the right to sell property comes up often in during estate administration, particularly in cases where property was owned and occupied by the same person or by the same family for decades. There may be incorrect assumptions about who owns the property. And when a family member passes away, family members may have the mistake believe that the property automatically passes to a particular family member. Unfortunately, the existence of a will does not always settle or clarify the matter. Oftentimes years may pass before anyone realizes that there is an issue related to the title. Usually the issue comes to light when someone tries to sell the property or take a mortgage out on the property.

While a will may not always help clarify title to real estate, it is still important to review your will on a regular basis and to update it when necessary. While there are many reasons why there may be confusions regarding ownership of property after a testator passes away, some confusion and disputes can be avoided if a will reviewed and changed as necessary.

For example, whenever real estate and other property with a significant value is bought, sold, or in some way encumbered, with the help of New York estate litigation attorney, the testator should determine the impact of the transaction on his (or her) estate and whether any changes need to be made in the will. If it is determined that the will should be updated, it is important that the changes to the will are executed in a manner that is consistent with New York law.

There are 2 ways to make changes to your will. You can execute an amendment, called a codicil. With a codicil the original will remains valid, except for the portions of it that are impacted by the codicil. With a codicil you can add terms to your will, delete terms, or change terms. In order for a codicil to be effective, it must be signed by the testator in the presence of 2 witnesses who must also sign it. The other way to change the terms of a will is to execute a new will. By executing a new will, the prior will would be legally revoked.

If you no longer feel your will reflects your wishes, you can also execute a document that revokes it. However, if you do not also execute a new will, you will be intestate. That means that your property will pass away based on the rules of intestate succession. Your property will go to your surviving spouse, your children, or to your other next of kin. To learn more about intestate succession and the many reasons why having an updated will that was drafted by a skilled practitioner, contact an estate litigation attorney in New York.

1. Who may make wills of, and exercise testamentary powers of: Estates, Powers and Trust, § 3-1.1
2. What property may be disposed of by will: Estates, Powers and Trust, § 3-1.2

The title of a purchaser of real property, in good faith and for valuable consideration, from a distributee of a person who died owning such property shall not be affected by a testamentary disposition of such property by the decedent, unless within two years after the testator's death the will disposing of the property is admitted to probate.  If, however, at the time of the testator's death, the devisee is either an infant, incompetent, imprisoned for a term less than life, without the state or if the will was concealed by one or more of the distributees of the decedent, the two year period prescribed herein does not commence until the expiration of one year from the time of the removal of such disability or the delivery of the will to the devisee or to the surrogate having jurisdiction to admit the will to probate.

Matters related to the winding up of a decedent’s estate are often complex. They can lead to disputes during probate as well as disputes that extend well after the decedent’s death. Such disputes can also involve individuals who are not beneficiaries, heirs, or other loved ones. The estate litigation attorneys serving New York at the Law Offices of Stephen Bilkis & Associates have years of experience representing clients in complex estate matters. We are here to help. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Manhattan, Nassau County, Queens, Staten Island, Suffolk County and Westchester County.