Ask an Expert

I'm the executor of my late aunt's will. Does that mean I have access to her rental?

By Virginia K. Smith  | March 13, 2017 - 12:59PM

Q: My aunt died and I'm the executor of her will. Do I have lawful access to her rental apartment, and until when? What else do I need to know about dealing with her apartment?

Though the logistical details will vary, you should have full legal access to your aunt's apartment through the remainder of her current lease, say our experts. That, and full responsibility for the apartment, including the rent.

However, keep in mind that in order to become the legal executor, you'll need file your aunt's will and other paperwork with the Surrogate's Court, which will then issue a legal order making you her will's executor. Until that happens, your access to the apartment will have to be negotiated with the landlord.

"Being named in the will as executor is not the same as actually being the executor," says Jeff Reich, an attorney with Schwartz Sladkus Reich Greenberg Atlas LLP. "Right after your relative dies but before the court order is issued, the landlord may allow very limited access to check on pets, discard trash, etcetera." 

Once the court order has been issued and you are legally the executor, you'll have full access to the apartment (and be responsible for the rent), though for how long will depend on the nature of the lease. "In general in New York, the estate is responsible for the rent until the end of the lease, and you will have use of the apartment until the lease ends, giving you time to take care of your responsibilities," says Reich.

However, in certain circumstances—if the apartment is a leasehold, or subject to rent stabilization, for instance—the estate is instead likely to be entitled to a reasonable period in which to turn around the apartment (usually around three months, says Reich).

"Where appropriate, you can work with the landlord to end the lease early when you no longer need the apartment," says Reich.

In the interim, you'll be reponsible for the contents of the apartment, including taking inventory of your aunt's belongings, having them appraised, and distributing and/or selling them in accordance with her will. You'll also need to file her income and estate tax returns, says Reich, and the documents you may need for those (bank statements, old tax returns, brokerage accounts, etc.) are likely to be located in the apartment.

"In short, you must tie up all of your aunt's legal and financial affairs, and many key records may be in the apartment," Reich explains. "So, you must carefully go through the apartment and be sure that you have all necessary financial records, as well as distributing or selling all of the other contents in according with the will."

One other logistical note to keep in mind: If your aunt has apartment insurance in place, you should notify her company about her death, but keep the insurance in place as long as possible, advises Gotham Brokerage President Jeff Schneider (fyi, a Brick sponsor). "The policy will automatically cover her estate, generally through the next renewal," says Schneider. That coverage will include damage to her apartment, and any liability claims for damage below (for instance, if there's a leak that goes unnoticed because no one is living in the apartment).

Handling your aunt's rental will mean a great deal of financial responsibility, and the last thing you want on top of that is an expensive additional insurance claim.


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