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Volume 6 - Opinions of Counsel SBEA No. 46

Opinions of Counsel index

Aged exemption (ownership requirement) (owner of rights to proceeds of sale) - Real Property Tax Law, § 467:

Where a testatrix leaves instructions in her will that her solely owned real property is to be sold and the proceeds used by her trustees for the benefit of her husband, the husband has no ownership interest in the real property and cannot receive an aged exemption (Real Property Tax Law, § 467) thereon.

A woman who had been receiving an aged exemption (Real Property Tax Law, § 467) died testate, instructing her executors to sell her real property and instructing her trustees to use the proceeds of sale to support her husband. The husband thereafter sought a continuation of the aged exemption, and our opinion is requested as to his eligibility.

Among the requirements of section 467 is that the real property for which exemption is sought be owned by the aged individual seeking exemption. For purposes of this opinion, we assume that title to the property was formerly solely in the name of the applicant’s late wife. That is, the widower-applicant had no ownership interest prior to his wife’s death.

Pursuant to the terms of the will, the executors are given the direction to sell the real property and to thereafter turn over the proceeds to the trustees of the testatrix, who are to hold the same and use them for the benefit of the widower. Presumably, the property has not yet been sold. Nevertheless, under the terms of the will, it does not appear that the applicant is the owner of the property so as to make him eligible to receive an aged exemption. Under settled case law, title is in the executors (Marks v. McGlynn, 88 N.Y. 375). Since title to the property is not in the applicant, he fails to satisfy the ownership requirement of section 467, and accordingly, no exemption may be granted in this situation.

March 22, 1979