Recommended Practices

informational articles
for attorney

title rate calculator

E-1
ADMINISTRATOR'S DEED - BOND

A deed made by an administrator pursuant to EPTL 11-1.1 (where the decedent died on or after June 1, 1965) will be insured without exception as to compliance with SCPA 805 (3), if:

• a further bond in the amount of the proceeds is filed before the proceeds are distributed; or
• a further bond is dispensed with by the court; or
• the existing bond was fixed in the amount that included the full value of the real property; or
• an accounting has been approved showing the property disposition of the proceeds; or
• acknowledged consents, releases or deeds are obtained from all distributees; or
• a proper judicial decree establishes the validity and effectiveness of the deed.

Back to Top

E-2
CONVEYANCE IN CONTEMPLATION OF DEATH

Where, within three years after a conveyance is recorded the grantor dies, no estate tax question need be raised before the property has been acquired by a subsequent purchaser for value.

Back to Top

E-3
FEDERAL ESTATE TAXES

• The question of Federal Estate Taxes may be disregarded where the New York Estate Tax proceeding against a former owner shows that the gross estate of the decedent was of the value of not more than $108,333.00 ($115,000.00 for decedent's estates after 6/9/94). An estate is exempt from Federal estate taxes when its value is less than $600,000.00 where the decedent died after December 31, 1986.
• The lien of a Federal Estate Tax against a deceased tenant by the entirety or a deceased joint tenant may be disregarded on a deed from the surviving tenant by the entirety or the surviving joint tenant to a purchaser who pays adequate and full consideration.
• The lien of a Federal Estate Tax against a deceased tenant by the entirety or deceased joint tenant may also be disregarded upon a mortgage for adequate and full consideration from the surviving tenant by the entirety or the surviving joint tenant.
• The lien of a Federal Estate Tax against a decedent may be disregarded upon a mortgage for value or a transfer made to a purchaser for value which transfer or mortgage is made directly by the heirs, devisees or distributees of the decedent.
• Where in an action party defendants are included as unknowns in an omnibus clause, no question will be raised as to possible Federal Estate Taxes against the estates of any such unknowns who may be dead and the United States Government need not be named a party for purpose of cutting off such possible Federal Estate Taxes. The United States Government is to be named as a party defendant for any other proper reason which may exist in the title.

Back to Top

E-4
INHERITANCE BY SURVIVING SPOUSE

• DEATH OF DECEDENT PRIOR TO MARCH 1, 1964
1. When decedent died prior to March 1, 1964 and title is through a surviving spouse who claims the entire title under subdivisions 2 and 3 of Section 83 of the Decedent Estate Law because the estate was less than $5,000, deeds should be obtained from the surviving parents or parent, or where title is made through a spouse who claims the entire title under subdivision 4 because the estate was less than $10,000, deeds should be obtained from the surviving brothers and sisters or their descendants. However the requirement for such deeds will be waived if title is made through a proceeding in the Surrogate's Court by an administrator for leave to sell the property or an accounting proceeding or a proceeding for probate of heirship or other appropriate action or proceeding properly conducted and such parents or collaterals are joined as parties and an appropriate finding is made that the value of the estate is below the required amount.
2. The title from the surviving spouse of an intestate may be passed without requiring deeds from the parents or collaterals and without requiring any of the foregoing proceedings or actions if proof is furnished of all three of the following:
   1. The estate was below the amount required to give the spouse the entire title; this may be established either by the estate tax proceedings or by affidavit, and
   2. The property had been improved for more than fifteen years, and
   3. The deed from the surviving spouse or from his or her heirs, devisees or successors in interest has been recorded for more than fifteen years.
• DEATH OF DECEDENT BETWEEN MARCH 2, 1964 AND SEPTEMBER 1, 1992
  1. When decedent died after March 1, 1964 and title is through a surviving spouse who claims the entire title under subdivisions 2 and 3 of Section 83 of the Decedent Estate Law because the estate was less than $25,000, deeds should be obtained from the surviving parents or parent.

     However such deeds will be waived if title is made through a proceeding in the Surrogate's Court by an administrator for leave to sell the property or an accounting proceeding or a proceeding for probate of heirship or other appropriate action or proceeding is properly conducted and such parents are joined as parties and an appropriate finding is made that the value of the estate is below the required amount.

     NOTE: The following did not take effect until March 1, 1974:

  2. The title from the surviving spouse of an intestate may be passed without requiring deeds from the parents and without requiring any of the foregoing proceedings or actions if proof is furnished of all three of the following:
     1. The estate was below the amount required to give the spouse the entire title; this may be established either by the estate tax proceeding or by affidavit, and
     2. The property has been improved for more than ten years, and
     3. The deed from the surviving spouse or from his or her heirs, devisees or successors in interest has been recorded for more than ten years.
• DEATH OF DECEDENT AFTER SEPTEMBER 1, 1992

  When decedent died after September 1, 1992, and title is through a surviving spouse who claims the entire title under Article 4 of the Estates Powers and Trusts law, deeds do not have to be obtained from the surviving parents or parent.

Back to Top

E-5
NEW YORK ESTATE TAX - DEATH AFTER JULY 1, 1978

• The lien of the New York Estate Tax may be passed where the decedent died a resident of New York State on or after July 1, 1978, and a satisfactory affidavit establishes that the gross estate, including the subject real property, is not more than $108,333 ($115,000 after June 9, 1994).
• The lien of the New York Estate Tax against a deceased tenant by the entirety or joint tenant may be disregarded on a deed from the surviving tenant by the entirety or joint tenant to a bona fide purchaser for adequate and full consideration.
• Where death occurs after May 25, 1990, the lien of the New York Estate Tax against a deceased tenant by the entirety or deceased joint tenant may also be disregarded upon a mortgage for adequate and full consideration from the surviving tenant by the entirety or the surviving joint tenant.
• Where death occurs after May 25, 1990, the lien of the New York Estate Tax may also be disregarded against an interest in property held by the decedent and the decedent's surviving spouse as tenants by the entirety.

Back to Top

E-6
POSTHUMOUS AND AFTERBORN CHILDREN

When the record fails to show whether any child of a decedent was born after the death of the decedent or after the date of the decedent's will, and no proof on the subject is available, the question may be disregarded if thirty years have elapsed since the death of death of the decedent, or if ten years have elapsed since a conveyance by the devisees to a bona fide purchaser.

Back to Top

E-7
POWER OF SALE - ANCILLARY LETTERS OF PROBATE

• Prior to September 1, 1967: Where a decedent dies in a State other than New York State, owning a real property in New York State, and his will is probated in such foreign state and an ancillary probate is had in New York State, the foreign executor may act in New York State pursuant to a power of sale granted in the will without obtaining Ancillary Letters in New York, unless precluded by Section 131 of the Banking Law.
• After September 1, 1967: Where a decedent dies in a State other than New York State, owning real property in New York State, and his will is probated in such foreign state, either an ancillary or original probate of the will must be completed in New York State and Ancillary Letters must be issued to the foreign executor before exercising in New York State a power of sale granted in the will.

Back to Top

E-8
PROBATE OF WILLS

• When title is made through a will and the estate is out of title and the petition for probate, though not made by a blood relative of the decedent, shows that the heirs are direct descendants or brothers or sisters, the title will be insured without exception as to the sufficiency of such proof.
• If under the same circumstances the petition shows that the heirs include nephews or nieces or more remote relatives, the title will nevertheless be insured without exception as to the sufficiency of such proof if five years have elapsed since the probate of the will.
• Proof of Heirship of Probate - Where title is presently being made through a will and the petition is made for probate by the surviving spouse, who has had children with the decedent, the title will be insured without further proof of heirship, provided that the decedent had not had a prior marriage and satisfactory proof of that fact is furnished.

Back to Top

E-9
PROOF OF HEIRSHIP

When a deed from the heirs of a former owner who died intestate has been recorded for more than ten years, and the only proof that such grantors are the only heirs is contained in a petition for letters of administration made by one who was not a blood relative of the decedent, the title will be insured without any exception as to the sufficiency of such proof.

Back to Top

E-10
PROOF OF HEIRSHIP & DEATH OF JOINT TENANT OR TENANCY BY THE ENTIRETY

• When a deed from the heirs of a deceased former owner who died intestate or the surviving tenant by the entirety or joint tenant of a deceased former owner has been recorded more than ten years, and the only proof that such grantor(s) are the surviving tenant by the entirety or joint tenant or the only heirs is contained in a statement in the transfer or estate tax petition or application for release of lien by a qualified person or (pursuant to Real Property Actions and Proceedings Law Section 341) in a recital contained in a duly acknowledged deed mortgage or other instrument executed for the purpose of transferring title which is more than 10 years old to the effect that he/she is the surviving spouse or joint tenant or the only persons interested in the estate of the decedent, the title will be insured without exception as to the sufficiency of such proof.
• A recorded release of New York Estate Tax may also be accepted as proof of death of a deceased joint tenant or tenancy by the entirety.

Back to Top

E-11
PROOF OF PAYMENT OF LEGACIES

Legacies, whether expressed or implied, charged on the real property of a decedent may be disregarded after 10 years from the date of death of the decedent if the estate has passed out of title.

Back to Top

E-12
PUBLIC ADMINISTRATOR'S SALES

Title made through sales by public administrators may be insured, if otherwise valid, despite the fact that no bond has been filed in the proceeding for the sale of the particular parcel and despite the fact that no bank has been designated in the order of the depository of the proceeds of sale.

Back to Top

E-13
PUBLIC ADMINISTRATOR'S SALES - ACTION IsN FIDUCIARY CAPACITY

If an intestate died on or after June 1, 1965, title made through sales by the Public Administrator acting as administrator of the estate under Section 11-1.1 of the Estates, Powers and Trust Law may be insured without requiring the filing of an additional bond unless the court so requires.

Back to Top