A family in Brooklyn loses their mother. She lived in the same brownstone for fifty years, and it was her single greatest asset. She left a valid will stating that her three children should inherit the property equally. But because the deed was in her name alone, the will acts as a key—and the only door it unlocks is the one to Kings County Surrogate’s Court. For the next nine to twelve months, a judge, not the family, will control the fate of that home.
This is real estate probate—the court-supervised process for transferring a decedent’s property to their heirs. It is often a long, expensive, and public ordeal that most of my clients work deliberately to avoid. When a property is titled in an individual’s name, the will does not transfer it automatically. It merely nominates an executor to petition the court for the authority to act.
Until the court issues “Letters Testamentary,” no one has the legal power to sell, refinance, or even formally transfer the title of the home. The children cannot list it with a broker. They cannot distribute it among themselves. The property is, for all intents and purposes, frozen.
The Executor’s Burden and the Court’s Control
An executor has an immense responsibility—a fiduciary duty to manage the estate’s assets prudently for the benefit of the beneficiaries. When real estate is involved, that duty becomes significantly more complex. The executor must secure the property, keep it insured, pay the mortgage and property taxes, and handle maintenance, all using estate funds that may themselves be tied up pending court approval.
If the family decides to sell the home, the process is not as simple as calling a real estate agent. The executor must often petition the court for the “power of sale.” This procedure is governed by Article 19 of the Surrogate’s Court Procedure Act (SCPA). The court’s primary concern is ensuring the sale is in the best interest of the estate and its creditors. This means the court may scrutinize the sale price, the terms, and the broker’s commission. It is a layer of oversight that adds time and legal fees to every step.
This court control is the fundamental reason we work to keep real estate out of probate. A family’s generational wealth should not be subject to a court’s calendar or a judge’s discretion if it can be avoided through intentional planning.
Common Complications in Real Estate Probate
The delays inherent in the court system are just one part of the problem. Real property often introduces unique conflicts that can stall an estate administration for years.
Disputes Among Heirs: What happens when one child wants to sell the family home and the other two want to keep it? If they cannot agree, the executor may be forced to petition the court for guidance or even to compel a sale. These disputes are not just emotionally taxing; they drain the estate’s resources through litigation.
Creditor Claims and Liens: A decedent’s debts must be settled before assets can be distributed. If the estate lacks liquid cash, the family home may be the only asset available to satisfy creditors. An executor may be forced to sell a property the family desperately wanted to keep simply to pay a final hospital bill or credit card debt.
Ancillary Probate: For many New York families, wealth is not confined to one state. If you own a vacation home in Florida or a condo in New Jersey, your executor will face an even greater challenge. They must open a primary probate proceeding here and then a separate, “ancillary” probate in every other state where you owned property. Each state has its own rules, its own courts, and its own legal fees. The complexity multiplies.
Stewardship Through Proactive Planning
The entire probate process for real estate is a default—it is what happens when a more deliberate plan is not in place. The most effective tool for avoiding it is a properly funded revocable or irrevocable trust.
When you transfer your property’s deed into a trust, you are no longer the owner on paper—the trust is. You appoint a trustee (often yourself, initially) to manage the property for the beneficiaries you name. Upon your passing, the successor trustee you designated can manage, sell, or distribute the property according to your instructions, completely outside the jurisdiction of the Surrogate’s Court. There is no delay, no court filing, and no public record of the transfer.
It is a shift from leaving behind a problem for your heirs to solve to providing them with a clear, private, and efficient path forward. It is the essence of good stewardship.
If you own property in your name, the next prudent step is to understand how that asset would be handled after your death. We can begin by scheduling a review of your current deed and estate plan to identify its exposure to the probate process and discuss a more direct path for your legacy.
