A family in Brooklyn calls me. Their mother passed away nearly eighteen months ago, leaving the family home to her three children. One son, the named executor, has been living in the house ever since. Whenever his siblings ask about selling it, he says he’s waiting for the market to improve. The other two children are growing impatient. They suspect their brother is enjoying the rent-free living more than he’s concerned about market timing. Their question is simple: “How long can he do this?”
The answer, like many in estate law, is not a fixed date on a calendar. No New York statute says an executor must sell a house within six, twelve, or twenty-four months. Instead, the law imposes a standard. That standard is the executor’s fiduciary duty—the highest duty of loyalty recognized by our courts.
The Executor’s Duty is Prudence, Not Speed
An executor’s primary role is to act in the best interests of the estate and its beneficiaries. For real estate, this means achieving the best possible sale price under the circumstances—not selling as fast as possible. A beneficiary demanding an immediate sale can be just as wrong as an executor who delays indefinitely.
The executor is a steward. Their responsibility is to preserve—and where possible, enhance—the value of the assets entrusted to them. This involves several deliberate steps before a property can even be listed:
- Securing the Asset: Immediately after death, the executor must secure the property, change the locks, maintain utilities, and ensure it is properly insured.
- Obtaining Authority: The executor must first be formally appointed by the Surrogate’s Court and receive Letters Testamentary. This document is the legal proof of their authority to act on behalf of the estate. This step alone can take several months.
- Valuation: A formal appraisal is necessary to establish the home’s fair market value. This is not just for setting a list price—it is also required for the estate tax return, if one is needed.
- Preparing for Sale: The executor must decide if minor repairs, a fresh coat of paint, or professional staging would result in a higher sale price. These are judgment calls, and a prudent executor will weigh the cost of improvements against the potential return.
Rushing to list a home “as-is” to quiet an impatient beneficiary might satisfy them in the short term, but it could also mean leaving tens of thousands of dollars on the table. A good executor resists that pressure, acting with diligence and care. Stewardship.
Justifiable Delays vs. Breach of Duty
While an executor has discretion, that discretion is not unlimited. We must distinguish between legitimate delays that serve the estate and unreasonable delays that constitute a breach of fiduciary duty.
Legitimate reasons for a sale taking a year or more are common. A title issue—like an old, undischarged mortgage or a property lien—may need to be resolved. If the home has a tenant, a formal eviction proceeding might be required, a process that can take many months in New York. A soft real estate market can also be a valid reason for a temporary delay, provided the executor has a clear, documented strategy and is not using it as a blanket excuse.
A delay becomes a breach of duty when it is negligent or, worse, self-serving. An executor who fails to list the property for no good reason, refuses reasonable offers, or uses the property for their own benefit—like the brother living rent-free in our Brooklyn example—is violating their legal obligations.
The Beneficiary’s Recourse
Beneficiaries are not powerless. When communication breaks down and an executor is failing to perform their duties, the law provides a path forward. Under the Surrogate’s Court Procedure Act (SCPA) § 2102, an interested party can file a petition to compel the executor to provide information or to perform a specific duty—in this case, to proceed with the sale of the property.
Filing such a petition is a significant step. It brings the matter before a judge who will require the executor to justify their actions or inaction. The court can order the executor to list the property by a certain date, accept a reasonable offer, or even remove the executor and appoint a successor if the breach of duty is severe enough.
These disputes often hinge on the tension between an executor’s discretion and a beneficiary’s right to their inheritance. An executor must be diligent, transparent, and communicative. Beneficiaries, in turn, must have reasonable expectations for the time it takes to wind up an estate.
If you are an executor managing an estate property or a beneficiary concerned about a delay, the first action should be a formal, written request for a status update and a plan for the property’s sale. If that does not produce a satisfactory response, it may be time to review the administration with counsel to understand your rights and the next steps available through the Surrogate’s Court.
