Eviction Proceedings in Surrogates Court: When New York Fiduciaries Can Remove an Occupant
When someone dies owning a house, condo, or co-op, the next legal fight isn’t always about the Will. Sometimes it’s about the front door: a family member, partner, caregiver, or other occupant refuses to leave the property — blocking a sale, preventing repairs, or delaying distribution.
Most people think “eviction = Housing Court.” In many cases, that’s true. But in estate and trust disputes, Surrogate’s Court can sometimes provide a better, faster, and more efficient path to regain possession—often through a turnover proceeding—depending on the facts and the occupant’s legal status.
Below is a practical overview of when eviction-like relief may be available in Surrogate’s Court, when it may not be, and how fiduciaries can approach these cases strategically.
Eviction Proceedings in Surrogates Court – Why “eviction” issues come up during probate
An estate can’t be administered efficiently if the fiduciary cannot control estate property. Common scenarios include:
- An adult child (or other relative) continues living in the decedent’s home “until things are sorted out.”
- A former caregiver or friend stays after death and won’t vacate.
- A surviving partner remains in a co-op or apartment while the estate needs to sell.
- A co-owner or occupant disputes the fiduciary’s authority.
In New York, the fiduciary’s job includes collecting and protecting assets and, where appropriate, preparing property for sale and distribution. Having the proper court-issued authority is often the first step to taking action.
First step: you generally need authority to act for the estate
If you are a beneficiary but not appointed as executor/administrator, your ability to bring a court proceeding for possession is usually limited. In many cases, the person seeking to control estate property must be the fiduciary appointed by the court (or hold appropriate limited authority).
Practical takeaway: if an occupant is refusing to leave, getting the right authority in place early is often what unlocks the rest of the strategy.
Eviction Proceedings in Surrogates Court – Can Surrogates Court really order someone out?
Sometimes—especially when the occupant’s continued presence interferes with estate administration.
1) Turnover proceedings can be used to regain control of estate property
Surrogate’s Court is often used to address situations where someone is withholding estate property or interfering with a fiduciary’s ability to secure and administer it. A turnover-type proceeding may seek a court order directing the occupant to deliver property, cooperate with access, or surrender possession so the fiduciary can carry out necessary duties—such as maintenance, insurance compliance, and sale.
Depending on the facts, the relief requested can include practical enforcement measures designed to restore possession and allow administration to move forward.
2) Real property procedures may apply when the estate must sell or manage the home
There are Surrogate’s Court procedures that can be relevant where the estate needs to address real property—for example, to manage, protect, or pursue a sale for appropriate estate purposes. Where an occupant is preventing those steps, the fiduciary may be able to ask the Surrogate to grant relief consistent with moving the administration forward.
When Surrogates Court may not be the right place
Not every “get them out” situation belongs in Surrogate’s Court. If the dispute is between living people, then Housing Court is the place to be. Similarly, if the dispute is really about co-ownership, the Supreme Court may be required.
For example, if the core issue is ownership rights between living co-owners (for example, a partition-type dispute), the proper forum may be Supreme Court rather than Surrogate’s Court, depending on the case and the relief needed.
Eviction Proceedings in Surrogates Court: A practical roadmap for fiduciaries facing an estate-occupant standoff
Every case is fact-specific, but many effective strategies follow the same progression:
1) Identify the occupant’s legal status
Is the person:
- a tenant under a lease or rent history?
- a “licensee” (someone allowed to stay informally)?
- a beneficiary who believes they’re entitled to remain?
- a co-owner (title issue)?
This classification often determines both the forum and the speed of relief.
2) Document how the occupancy is interfering with administration
Courts respond to specifics. Prepare a petition explaining the inability to list the property, safety issues, inability to access, unpaid expenses, insurance concerns, and delays in distribution.
3) Make a written demand to vacate (and preserve proof)
Even when pursuing Surrogate’s Court relief, a clear written demand helps create a clean record of refusal and ongoing obstruction.
4) Choose the right proceeding and venue
Depending on the facts, counsel may consider:
- a Surrogate’s Court proceeding seeking turnover-type relief related to possession and control of estate property,
- a landlord-tenant case in Housing Court, or
- an ownership-focused case in Supreme Court.
5) Ask for practical, case-specific relief
Depending on the situation, a fiduciary may seek relief that addresses not only “leave,” but also:
- access for inspections/repairs,
- use and occupancy (when appropriate),
- authority to market/sell,
- and enforcement mechanisms.
These remedies are highly fact-dependent, and the best approach varies widely based on the property type (house vs. co-op), the occupant’s status, and the estate’s goals.
Eviction Proceedings in Surrogates Court: FAQs
Potentially. Whether removal is possible, and in which court, depends largely on whether the person is a tenant, a licensee, a co-owner, or otherwise has enforceable occupancy rights—and whether their continued occupancy is interfering with estate administration.
In some cases, Surrogate’s Court may grant relief that effectively restores possession to the fiduciary when necessary to administer the estate. The availability and form of relief depends on the facts and the legal status of the occupant.
Then the matter may need to be handled as a landlord-tenant case, with the notices and procedures required in the appropriate court.
Yes. Most strategies require formal authority to act for the estate, especially where court proceedings are involved.
How RK Law helps with Eviction Proceedings in Surrogates Court
Occupancy fights can stall an estate for months (or longer) and create escalating costs—mortgage, taxes, insurance, repairs, and conflict among beneficiaries. RK Law helps fiduciaries and interested parties evaluate the occupant’s status, choose the proper court and strategy, and pursue relief designed to secure estate property and move administration forward.
For more information, please contact NYC Probate Litigation, Guardianship, Probate, and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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