As an Estate Lawyer, I often get phone calls from clients who have successfully obtained letters of administration for the estate of a loved one, but can’t sell the real property or even transfer it to themselves. The reason is that when a decedent dies owning real estate, the Kings County Surrogate’s Court in Brooklyn often places 805 or 805(3) limitations which may read as follows: "THE SAID ADMINISTRATOR IS HEREBY RESTRAINED FROM SELLING, TRANSFERRING, MORTGAGING
OR IN ANY MANNER ENCUMBERING THE REAL PROPERTY FOR THE DECEASED EXCEPT UPON FURTHER ORDER FROM THIS COURT AND FILING OF A BOND PURSUANT TO SCPA 805(3)". The reason for this limitation is that Surrogate’s Courts have the authority to require the administrator to post a bond in order to protect the heirs of the estate if the administrator mishandles the real estate. Often, the heirs need to re-title the property to their own names for insurance or tax purposes or need sell it to a third party. Before the property can be transferred or sold, however, either a bond needs to be purchased or the limitations need to be removed. Purchasing a bond can be costly, and not all administrators can qualify for a bond, which requires the administrator to have good credit and a solid financial situation.
Our office regularly helps clients remove these limitations without the filing of a bond if all of the distributees agree to do so. We help clients regardless of whether we obtained letters of administration, another law firm did so, or the client themselves obtained them. It is important to remember that the court has final discretion as to whether to waive the requirement to post a bond or not. We first get a list of the assets of the estate and use that to prepare a form ET-30 or ET-85 and file it with New York State, which should then issue an ET-117 Release of Lien of Estate Tax. We attach the ET-117 to a petition which we prepare asking for the removal of the bond requirement. We also obtain waivers and consents to lift restrictions from all distributees. Upon filing the required petition and ancillary documents, we await the court’s decision. When time is of the essence, such as when there is an imminent closing date and a delay would cause irreparable harm to the estate, we submit the petition with an affidavit of urgency in the hopes that the court would expedite the issuance of letters of administration without the SCPA 805 limitations.
If you have been appointed administrator of an estate in New York City and have questions about removing the 805 restrictions on the letters of administration, our office can help.
Call today for a free phone consultation: Law Offices of Roman Aminov 147-17 Union Turnpike Flushing, NY 11367 (347) 766-2685
