Surrogate López Torres
ESTATE OF WILLIE TOMLIN, Deceased (18-2953/A) — In this instant uncontested miscellaneous proceeding, the Public Administrator of Kings County (the petitioner), as the administrator of the estate of Willie Tomlin (the decedent), seeks an order of the court i) declaring null and void a certain deed reflecting the transfer of 1362 Herkimer Street, Brooklyn, New York (the real property), ii) directing that said deed be expunged from the records of the Kings County Clerk, and iii) directing the principals of The 1362 Herkimer Street Trust (the trust), namely Garrett Everett (Everett) and Charles Wright (Wright, and together with Everett, the trustees), to account for any monies and rents received, as well as any personalty removed, from the real property. The decedent died intestate on January 5, 2018, and the petitioner was issued letters of administration on October 10, 2018. The petitioner commenced the instant proceeding on February 15, 2019, and jurisdiction has been obtained over all necessary parties, including Mabelle Lucas, the decedent’s alleged aunt, and Charlie Tomlin, the decedent’s alleged uncle, as well as the decedent’s unknown kin, the trust in care of each trustee, respectively, The 1362 Herkimer Street Trust, and Deutsche Bank National Trust Company (Deutsche Bank), as holder of a mortgage on the real property. None of the respondents have appeared herein, and no opposition has been interposed to the relief requested. The petitioner asserts that the real property is an asset of the decedent’s estate and is encumbered by a mortgage held by Deutsche Bank, in the amount of $498,000.00 He asserts that the assessed value of the real property for tax purposes was $789,000.00 in the 2017/2018 fiscal year, and it must be sold in order to satisfy the outstanding mortgage and avoid foreclosure; however, the petitioner faces an impediment to the proposed sale. Despite the decedent’s death in January of 2018, a deed dated March 13, 2018, and recorded with the County Clerk on August 14, 2018, purports to transfer ownership of the real property from the decedent, as grantor, to the trust. Intriguingly, while reflecting the decedent as the grantor, the deed’s signature line reflects the signatory as “Willie Tomlin Jr. Auth Rep.” The identical signatory is reflected on the ACRIS documents associated with the purported transfer. Odder still, notwithstanding the signatures on the deed and ACRIS documents, the notarization of the signature on the deed reflects that an individual identified as “Mark,” whose surname is illegible, appeared before the notary as signatory on the deed. The presenter of the deed is identified as Wright, one of the trustees. The petitioner avers that the deed is a cloud on title to the real property, and that having been purportedly executed two months after the decedent’s death, at a time where no fiduciary of his estate had been appointed, is evidence of a fraudulent attempt to acquire a valuable estate asset. The petitioner notes that even if the trust is determined to have been established prior to the decedent’s death as an inter vivos trust, the documentary evidence indicates that ownership of the real property was not transferred to the trust prior to the decedent’s death. Ambiguities abound with respect to the identity and authority of the purported grantor and signatory to both the deed and the ACRIS documents. Quite obviously the decedent was unable to act as grantor of his property, having died two months prior to the purported transfer and eight months prior to registration of the deed. Further, the indecipherable signature of “Mark,” whom the notary affirms as signatory, is nowhere else reflected in the documents related to the transfer. Finally, the court notes, again, that no fiduciary was appointed in the decedent’s estate until seven months after the purported transfer. At the least, the circumstances surrounding the attempt to transfer the real property out of the decedent’s estate appear to sound in fraud. As noted above, jurisdiction over all interested parties is complete, and none, including the trustees, have appeared or interposed opposition. Pursuant to the provisions of SCPA 509, “a petition,…unless denied by an answer, objection or other proof, is due proof of the facts therein stated.” There being no proof offered to demonstrate that the purported transfer was in fact valid, the instant petition is granted, and the deed dated March 13, 2018, which purports to transfer ownership of 1362 Herkimer Street, Brooklyn, New York, from Willie Tomlin to The 1362 Herkimer Street Trust is void ab initio. The petitioner’s request for an order of the court directing Charles Wright and Garrett Everett, as trustees of The 1362 Herkimer Street Trust, to file an accounting of any assets received or removed from the real property is denied as premature. Submit decree. Dated: May 15, 2020
