A family in Brooklyn inherits their parents’ brownstone, the place they grew up. Their first thought is to sell it and divide the proceeds, as the will directs. They soon discover a hard reality: they can’t. The deed is in their late father’s name, and in New York, that means the house now belongs to his estate. And the estate belongs to the Surrogate’s Court.
This is one of the most common and frustrating situations I see in my practice. A family is grieving, and now they must become unwilling participants in a court process that can last for months, sometimes years. The single largest asset they’ve inherited is frozen, yet they are responsible for its upkeep—the mortgage, the taxes, the insurance—all while waiting for a judge’s permission to act.
Why Real Estate Is Different in Probate
Unlike a bank account or a stock portfolio, you cannot simply present a death certificate and a will to transfer ownership of a home. Real property is governed by a deed, a formal legal document recorded with the county. To change that deed from the decedent’s name to the name of the estate, a buyer, or a beneficiary, you need legal authority.
That authority comes in the form of Letters Testamentary (if there’s a will) or Letters of Administration (if there isn’t). These documents are issued by the Surrogate’s Court and officially appoint an executor or administrator to act on behalf of the estate. Without them, you have no power to sign a listing agreement with a broker, accept an offer, or sign a deed at closing. The property is effectively locked.
The process to get these Letters involves filing a petition, notifying all interested parties, and satisfying the court that the will is valid. Any objection—from a disinherited relative or a creditor—can bring the process to a halt.
The Fiduciary Duty of an Executor
Once appointed, the executor has a solemn responsibility known as a fiduciary duty. This is the highest standard of care under the law. It means you must act with complete loyalty to the estate and its beneficiaries, putting their interests ahead of your own. When selling a property, this has concrete implications.
You cannot, for example, sell the home to a friend for a below-market price. You must take prudent steps to get the best possible value. This typically involves:
- Obtaining a formal appraisal to establish a fair market value.
- Hiring a real estate agent to market the property widely.
- Maintaining the property to keep it in saleable condition.
- Negotiating offers in good faith on behalf of the estate.
This duty is not just a guideline—it is legally enforceable. Beneficiaries who believe an executor has mismanaged the sale of a property can sue for damages. I have seen disputes over real estate sales tear families apart, often because the executor was not properly advised on their duties.
When the Court Must Approve the Sale
Even with Letters Testamentary, an executor’s power might have limits. Many older wills were drafted without language explicitly granting the executor the “power of sale” over real estate. When that specific power is missing, the law steps in to protect the beneficiaries.
Under New York’s Surrogate’s Court Procedure Act (SCPA) Article 19, the executor may be required to file a separate petition asking for the court’s permission to sell the property. You must demonstrate to the judge why the sale is in the best interest of the estate—perhaps to pay debts, taxes, or to facilitate distribution to the heirs. This means another court filing, another delay, and more legal fees.
The specific language in a planning document—or its absence—has significant, real-world consequences for the next generation.
Intentional Planning Is the Only Way Out
The entire court-supervised process can be avoided. Stewardship of a family’s legacy means planning for a seamless transition, not leaving it to a court schedule. For assets like a primary residence or an investment property, the most effective tool is often a trust.
When you place real estate into a revocable living trust, you retitle the deed from your individual name to your name as trustee. You still control the property completely during your lifetime. But upon your death, the property is not part of your probate estate. Your chosen successor trustee can step in immediately to manage or sell the property according to the instructions you left in the trust document. No court petition, no months of delay, no public record of the transaction.
This is a private, efficient, and deliberate way to handle one of life’s most significant assets.
Whether you are an executor managing a property or a property owner planning your legacy, the path forward begins with the documents themselves. Bring the deed, will, or trust to our office for an initial review of your specific situation.
