Estate Planning In the Co-op and Condo Apartment

The death of a loved one not only brings grief and sorrow, but an agonizing pile of paperwork to tend to and affairs to get in order. For residents of New York City, it also means figuring out the fate of the deceased's co-op or condo apartment, if it hadn't been figured out beforehand.

When an owner dies, a co-op or condo has specific rules and regulations outlining how it can be passed down to a beneficiary. For example, since a condominium is considered real estate, it can be passed down to any beneficiary, provided that the condo board doesn't choose to exercise its right of first refusal and buy the apartment outright from the owner's estate. According to Thomas E. Kass, an attorney specializing in real estate and corporate transactions with Kantor Davidoff in New York City, "It depends; the involved parties would need to reference the condo's documents to see if the condominium does indeed have that right - but that's not usually an issue that arises." And after the beneficiary receives the property, it can then be determined whether to keep it, be financially responsible for it, or sell it.

By contrast, as a co-op is an allotment of shares in a corporation that is run by a co-op board, transferring shares to a beneficiary becomes more complicated. "A typical proprietary lease has restrictions with respect to transfer or sale and is often subject to a co-op board approval," says Kass.

To protect your property and to make sure that it is given to the person that you have chosen, the best place to start is before you seal the deal. "If you're in a situation where you want someone to inherit the apartment after you die, than make sure the paperwork is done at the time you get the apartment," said Alan Fried, an attorney with Manhattan-based Ganfer & Shore, LLP.

Shared Ownership

Most married couples purchase co-op apartments as Tenants in the Entirety, a form of home ownership available only to married couples, so long as they remain married and occupy the home as their principal residence. "If one spouse dies, the other spouse will inherit the property, regardless of any legal will that was created," says Fried.

How the shares of a co-op are handled also depends on the number of co-owners. If there is only one owner, a legal will can determine the beneficiary of those shares. When more than one person owns a co-op, it will depend on the manner in which they hold those shares.

There are several ways that two or more non-married people can own an interest in the same property at the same time, including joint tenants with right of survivorship and joint tenancy. Joint tenants with right of survivorship means that if one of the joint tenants dies, his share automatically goes to the other owners who survive him. One advantage to this arrangement is that there is no probate, a legal process for changing ownership of property. However, if you purchased property under this condition and your will states that your shares should go to a party other than the surviving owner or owners, it will not be honored.

Tenancy in common allows each owner to hold separate ownership of the shares, which can be sold, conveyed or transferred without the consent of the other owners. When one of the owner's dies, their shares are transferred by the owner's will or to one of the owner's heirs.

According to Fried, in a proprietary lease of a co-op, the participation of the board is usually defined in the assignment paragraph. "There is usually no consent needed to bequest the co-op to a spouse and the board cannot reasonably refuse any member of the family if they are financially responsible."

Where There's A Will"

How the co-op or condo is handled may also depend on whether or not the owner had a will. A will is a legal document that outlines who gets your money, property and if they are young enough, your children. In most cases, simply writing a will describing your wishes would be enough, but when it comes to cooperative apartments, it may not stand on its own. "You can't simply will your apartment to somebody," says Steven Wagner, an attorney with Wagner, Davis and Gold in New York City. "The transfer of shares is still subject to board approval and compliance with the legal document."

If you are a private owner of a co-op or condo and you do not have a will, the government may decide for you who receives what, including your children and your property.

"If you die without a will, there is a law of intestacy which states that the government has an order of who would inherit your property," says Fried. "This order is your spouse, children and then your parents, all the way to first cousins before the property goes to the State."

The state will then have the right to sell the shares to a third party, or they can step in as tenant, paying maintenance and common charges. If the state fails to do so, the apartment or condo can be foreclosed and the building can take the apartment back.

When someone dies, there are usually no snafus in the transfer. "It's rare that the beneficiary wants to move into the property unless they are already there," says Wagner. "But even if there are problems, I try to counsel my clients to respect the wishes of the deceased person. However, just because someone gives you an apartment doesn't mean you [can] abandon the requirements of the proprietary lease and bylaws."

If you don't think it can happen to you, think again. During their 22-year-marriage, Keith Edwards promised his wife Michele he would get a will and add her name onto the house. When Keith died in a skydiving plane crash in May 1999, his reluctance to handle his affairs left his widow struggling financially, legally, and emotionally.

"The estate took several years to get settled. We had a little insurance which was enough to pay for the funeral, help out my children and get a car that I needed, but the money only lasted for so long," says Edwards. "I couldn't start to grieve over my husband's death for months because I was handling all of these financial problems."

Writing a will prevents such legal and financial hassles for your beneficiaries and those tending to your affairs. "The bottom line is that if you don't have a will, there can be a lot of objections from potential heirs as to how the property is being transferred, costing lots of money," says Kass. "Determine what you want to happen when you die, but you need to also think about the tax consequences. Depending on how you own it, you may have serious tax consequences."

When you write a will, you choose an executor and a trustee, a person who will enforce what you write. It's important to update documents regularly and check to make sure the right beneficiaries are on the documents. You could also use a personal locator system to help update and keep track of these documents. The personal locator sets out in writing where everything is - account numbers, bank locations, credit card accounts, insurance policies, and so forth - and gets revised annually.

A will is important and takes a lot of preparation, but it doesn't have to be difficult. An attorney can help you document any provisions you want to make and a tax advisor can inform you of any tax penalties that you should consider. In New York City, prices for preparing a will can average between $750 and $1,000, but can be higher depending on the size of your assets. Wills should be updated after marriage, divorce, the birth or death of children, bankruptcies or significant inheritances, and anytime you buy or sell property.

Estate planning helps you create a sensible, practical, and economical arrangement for your business and personal affairs that will satisfy your objectives during your lifetime. It involves the development of long-range plans for the management of your financial affairs to meet your particular circumstances and wishes. It also incorporates your concerns for the eventual disposal of real estate and personal property to your beneficiaries. While the issue of what happens when you or someone you love dies can be uncomfortable - sometimes painful - to discuss, the reality is that it is reality, and though planning wisely for the inevitable may not cure the pain of loss when it occurs, it does ease some of the burden, and provides clear answers to what might otherwise be difficult questions.

Lisa Iannucci is a freelance writer based in Poughkeepsie, New York.

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