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EXECUTORS’ INTENTION TO EVICT DAUGHTER OF DECEDENT’S RESIDENCE IS SUCCESSFUL BUT COULD BACKFIRE ON THEM Click here to save article in
WinZip.exe format to your PC Executors,
sons of the decedent, sought to evict their sister from the residence she
occupied with her son (the grandson of the decedent) and father prior to
the father’s death. The
sister was suffering with cancer. Apparently
the sister created some hazards about the residence and made showing the
residence and repairs difficult to accomplish. The court
held: that it is the duty of the executors to take steps to conserve the
assets of the estate and to liquidate those assets as soon as possible.
Thus it is appropriate for the executors to initiate a proceeding
to evict the sister so that the property can be sold. The
property had a value of $1.7 million.
Thus estate taxes would be due and that was another reason for the
need to sell the property so that cash could be raised to pay the taxes. Interestingly,
it was learned during the course of the testimony that the holders of a
power of attorney (POA) provided by the decedent had made gifts during the
lifetime of the decedent which exceeded the authority given to them as set
forth in the POA by making annual exclusion gifts to spouses of children.
These gifts were not authorized by the terms of the standard short
form power of attorney. So
the court now ordered the agents under the father’s POA to account for
the period of their stewardship. The
court also got into the discussion that gifts made under a POA must be in
the best interests of the donor of the gift and there may well be an issue
about whether these were in fact gifts made in the best interests of the
donor-father. NOTE: If it is determined that the
gifts made by the agents exceeded their authority under the POA, will that
also mean that the excess gifts come back into the taxable estate and are
subject to estate taxes? FURTHER NOTE: Are gifts made to
reduce estate taxes made in the best interests of the donor of the POA or
in the best interests of the estate beneficiaries who will indirectly be
paying a smaller estate tax? See In the Matter of the Estate of James B. Rice, Sr., 2005 NY Slip Op 5087U (Surr. Ct. Nassau Co. June 8, 2005) |
