A client recently came to our Manhattan office with a common and difficult problem. Her mother had passed away, leaving behind the family home in Brooklyn where she had lived for fifty years. My client, an only child living in California, was grieving—and now she was also the executor of an estate whose main asset was a house three thousand miles away. She had keys, a will, and a flood of questions. Where do I even begin?
For most New Yorkers, this is the reality of inheritance. It is rarely a simple transfer of keys. More often, it is the beginning of a formal legal process, a period of stewardship where you have a duty to manage and protect an asset that is not yet legally yours to sell.
First, Who Has the Authority to Sell?
The single most important question is not how to sell the house, but who has the legal authority to do so. The answer depends entirely on how the property was owned.
In some cases, the process is straightforward. If the house was held in a trust, the successor trustee named in the trust document is in control. If the deed included a right of survivorship (a “joint tenancy”), ownership may pass directly to the surviving owner. These methods avoid the probate process entirely.
But for the vast majority of estates I see, the property was owned by the decedent alone. In these situations, the will is not the final word—it is the roadmap. The will must be submitted to the county Surrogate’s Court for probate. This is the formal process where a judge validates the will and officially appoints the person nominated to manage the estate—the executor. Only after the court issues a document called Letters Testamentary does the executor have the legal standing to sign a listing agreement, accept an offer, and sign a deed.
Without those Letters, you have no authority. Any attempt to sell the property before your appointment is invalid. Trying to rush the process can create title problems that will derail a future sale.
The Executor’s Role and Fiduciary Duty
Once appointed, an executor becomes a fiduciary. This is a high legal standard. It means you have a duty of absolute loyalty to the estate’s beneficiaries. Your job isn’t just to sell the house—it’s to act prudently and in the best interest of all heirs. This involves several distinct responsibilities.
First is the duty of care. This means securing the property, maintaining insurance, paying the mortgage and property taxes, and keeping it in good repair until it sells. I’ve seen estates lose value because an executor neglected a leaky roof or failed to keep the heat on during winter, resulting in burst pipes. These are real costs and real liabilities.
Second is the duty of loyalty. The property must be sold for a fair market value. You cannot, for example, sell it to a friend or relative at a steep discount without risking a lawsuit from other beneficiaries. An independent appraisal is often the most prudent first step to establish a baseline value.
While a well-drafted will typically grants the executor the power to sell real estate, New York law provides a backstop. SCPA Article 19 outlines the proceedings for the disposition of real property. If the will is silent or ambiguous on the power of sale, or if a sale is necessary to pay the estate’s debts, the executor may need to petition the Surrogate’s Court for specific permission to proceed. This protects both the executor and the beneficiaries by ensuring court oversight.
Financial and Family Realities
Beyond the court process, selling an inherited home brings unique financial and personal challenges. One of the most significant financial aspects is the “step-up” in tax basis. When you inherit property, its cost basis for tax purposes is reset to its fair market value on the date of the owner’s death. This means if you sell the house quickly for a price close to that value, there is often little to no capital gains tax to pay. This is a critical detail many beneficiaries overlook.
The more delicate challenge is often family dynamics. When multiple siblings inherit a property together, they may not agree on the path forward. One may want to sell immediately for cash. Another may want to renovate it to maximize the price. A third may have a sentimental attachment and want to keep it in the family. As executor, your role is to be an impartial steward, guided by the terms of the will and your fiduciary duty—not by emotion. If beneficiaries cannot agree, the executor may ultimately have to petition the court for guidance or for the authority to force a sale to settle the estate.
Inheriting a home is a profound moment. It is the transfer of a generational asset, a place of memory, and a significant financial responsibility. Acting with deliberate, informed intention is the key to honoring that legacy properly.
If you have been named the executor of an estate that includes real property, the first step is to establish your legal authority. Our firm can schedule a consultation to review the decedent’s will and outline the necessary petition to the Surrogate’s Court.
