After a parent passes away in Brooklyn, the family is often left in a home filled with a lifetime of possessions. Amid the grief, practical pressures mount. The mortgage is still due, utility bills arrive, and the cost of maintaining the property adds up. It is tempting to sell a few valuable items—a car, some jewelry, a collection of art—to cover immediate expenses. But the will has not even been filed with the Surrogate’s Court. A well-intentioned mistake here can create serious legal and financial consequences.
I have seen this situation many times. A family assumes that because a person is named as the executor in the will, they have the immediate authority to act. This is a fundamental misunderstanding of New York probate law. The will is just a document nominating a person for a job; the court is what actually hires them.
The Court Grants Authority, Not the Will
An executor’s legal authority to manage, sell, or distribute estate assets comes from one place only: the Surrogate’s Court. When we file a probate petition, we are asking the court to validate the will and formally appoint the nominated executor. If the court is satisfied, it issues what are called “Letters Testamentary.” This document is the executor’s badge of authority. Without it, you are acting as an individual, not as a fiduciary of the estate.
Think of it this way: selling property before you have Letters Testamentary is like trying to sell a car you do not have the title to. You simply lack the legal standing to transfer ownership. Any such sale is invalid. The person who acted could be held personally liable for the property’s full value. Creditors or other beneficiaries could later demand that the asset be returned or that its value be paid back into the estate—from the would-be executor’s personal funds.
A Fiduciary’s First Duty: Preserve the Estate
Once appointed, an executor becomes a fiduciary. This is a legal term with significant weight. It means you have a duty of absolute loyalty to the estate and its beneficiaries. Your first job is not to liquidate, but to preserve and protect. This involves several key steps:
- Marshalling Assets: This is the official term for creating a complete and accurate inventory of everything the decedent owned, from real estate and bank accounts to furniture and personal effects.
- Valuation: Not everything needs a formal appraisal, but significant assets like artwork, antiques, or jewelry should be valued by a professional. Selling an item for what you think it is worth, only to find out it was far more valuable, can be considered a breach of your fiduciary duty.
- Paying Debts and Taxes: Before any beneficiary receives a dollar, the estate’s legitimate debts must be settled according to a strict legal priority. New York’s SCPA § 1811, for instance, dictates the order of payment—funeral expenses and administration costs come before general creditors. You cannot know the full extent of these liabilities at the outset. Selling assets prematurely risks leaving the estate without enough cash to satisfy its creditors.
Acting too soon disrupts this deliberate order. If you sell a painting for $5,000 to pay a utility bill, but the estate later owes $50,000 in taxes and that painting was its most valuable liquid asset, you have created a serious problem for which you could be held liable.
What Can a Family Do Before Probate?
While you cannot sell property, you are not powerless. There are prudent, necessary steps a family can and should take to protect the estate’s assets while waiting for the court to act. Stewardship begins immediately.
The nominated executor can—and should—take protective measures. This includes securing the home, changing the locks if necessary, and ensuring the property is safe. You can begin the process of creating an informal inventory, taking photos of each room and making lists of significant items. This is not for sale, but for accounting. It is also a good time to locate important documents like titles, deeds, and financial statements.
This period is for organization and preservation, not distribution or liquidation. The goal is to hand over a complete, intact estate to the legally appointed executor—even if that person will be you. By respecting the court’s process, you protect not only the legacy of the person you lost but also yourself from future liability.
If you have been named as an executor in a will and are unsure of your immediate responsibilities, the first step is to clarify the legal timeline. Before you touch a single asset, we can outline the sequence of events for filing with the Surrogate’s Court, giving you a clear roadmap for your duties ahead.
