A client recently came to our Manhattan office after being named the executor of her mother’s will. She was now responsible for a life’s worth of assets, the largest of which was the family brownstone in Brooklyn. She saw real estate listings for “estate sales” and assumed it was just a marketing term for a home that needed updates. But as an executor, she was beginning to understand that selling this property was not a simple transaction. It was an act of stewardship with legal duties attached.
Her instincts were correct. In New York, when a property is sold from a decedent’s estate, it’s fundamentally different from a standard home sale. The seller isn’t an individual acting on their own behalf; the seller is a fiduciary—an executor or administrator—acting on behalf of beneficiaries and creditors. This distinction changes everything.
An Act of Fiduciary Duty, Not Just a Sale
When you sell your own home, you are free to accept any offer you like. You can sell it to a friend for a dollar if you choose. An executor does not have that freedom. An executor has a fiduciary duty to the estate’s beneficiaries to act prudently and in their best interests. This means their primary goal is typically to secure the highest possible price for the property under the prevailing market conditions.
This duty has several practical consequences. First, the property should be properly valued by a qualified appraiser. Simply accepting the first offer or relying on an online estimate is often not enough. If a beneficiary later challenges the sale price in Surrogate’s Court, a formal appraisal provides a strong defense that the executor acted responsibly. Second, any transaction that involves self-dealing—like an executor selling the home to themselves or a close relative at a steep discount—will face intense scrutiny and can be voided by the court.
The entire process is an exercise in careful, documented decision-making. Every step, from hiring a real estate agent to accepting a final offer, must be taken with the beneficiaries’ interests in mind. It is a legal responsibility, not just a financial one.
The Authority to Sell: The Will and the Court
An executor doesn’t automatically have the right to sell real estate. The authority must come from one of two places: the will itself or an order from the Surrogate’s Court.
Most well-drafted wills that I see explicitly grant the executor the “power of sale.” This language allows the executor to market and sell the property without needing to seek the court’s permission for the transaction itself, which makes the process far more efficient. The executor can act much like a typical seller, though still bound by their fiduciary duty.
But what if the will is silent on the matter, or if the decedent died without a will (intestate)? In these cases, the executor or administrator may need to commence a separate proceeding in Surrogate’s Court to get permission to sell. New York’s Surrogate’s Court Procedure Act (SCPA) outlines when this is required. For instance, SCPA § 1902 specifies that a fiduciary can petition the court for authorization to sell property to pay the decedent’s debts, funeral expenses, or estate taxes. This proceeding requires notifying all interested parties and demonstrating to the judge that the sale is necessary and in the best interest of the estate.
This court oversight is a protection for the beneficiaries, ensuring a major asset isn’t disposed of improperly. For the executor, it means the timeline for a sale can be significantly longer.
Understanding “As-Is” and Other Realities
Many estate properties are sold “as-is.” This isn’t just because the home may be dated. It’s a legal protection for the estate. An executor rarely has the same personal knowledge of a property’s history as a long-time owner. They may not know about the leaky faucet fixed ten years ago or the age of the roof.
By selling “as-is,” the executor limits the estate’s liability for unknown defects. Buyers can and should perform their own inspections, but the estate generally won’t make representations or warranties about the property’s condition. This is a prudent measure to protect the estate’s assets from future claims, ensuring that once the sale is complete, the proceeds can be safely distributed to the beneficiaries without fear of a future lawsuit.
Selling a home from an estate is a deliberate process governed by law and duty. It requires a clear understanding of your authority as a fiduciary and a commitment to transparent, prudent action. It’s about honoring a legacy by preserving its value for the next generation.
If you are an executor tasked with managing New York real estate, a prudent first step is to have the will and title documents reviewed to confirm your authority to sell. Our firm can conduct this initial assessment to clarify your duties and the legal path forward.
