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Selling a Decedent’s Home in New York
Reviewed by Jules M. Haas, a New York Surrogate’s Court and estate attorney and Principal at Jules M. Haas, Attorney at Law. Last updated September 29, 2026.
What You Need to Know About Selling Estate Real Property in New York In New York, the executor or administrator holding letters may sell a decedent’s real property at public or private sale under Estates, Powers and Trusts Law § 11-1.1(b)(5), unless the will limits that power or the property was specifically left to a named person. Where the power is missing or the sale is disputed, the Surrogate’s Court may direct a sale under Article 19 of the Surrogate’s Court Procedure Act for the purposes listed in SCPA § 1902.
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Jules M. Haas has handled New York probate matters, and the real estate closings that grow out of them, for more than 40 years from my office in Manhattan. The most common call I get from a new executor or administrator is about the house. A parent has died in Forest Hills or Bay Ridge, the property is the largest asset in the estate, and the family wants to know who can sign the contract and whether the Surrogate has to approve.
Most of those questions have short answers once the will and the deed are on my desk. I handle an estate sale as a part of my entire estate representation, petition for letters and also negotiate the contract and attend the closing in all counties, which is where my New York real estate practice intersects with the probate work or intestate administration. I help clients find a real estate broker and I interact directly with the title company to clear title and arrange for mortgage pay-offs. I also assist with evictions to remove unwanted occupants from estate property.
Who Has the Authority to Sell a Decedent’s Home in New York?
Authority to sell a decedent’s real property in New York rests with the fiduciary, meaning the executor named in a probated will or the administrator appointed for an intestate estate. EPTL 11-1.1(b)(5) authorizes every fiduciary, absent a contrary provision in the will or in the order of appointment, to take possession of estate property, collect the rents, mortgage it, lease it for up to three years, and sell it at public or private sale on the terms the fiduciary judges most advantageous to those interested. The statute’s definition of fiduciary reaches executors, administrators, preliminary executors, administrators with the will annexed, and trustees, so an intestate estate carries the same power of sale as one governed by a will.
When the Will Specifically Leaves the House to Someone
A fiduciary’s power of sale under EPTL 11-1.1 covers property the will disposes of generally or leaves in the residue. It does not cover property that is specifically disposed of. A will leaving “my house in Kew Gardens to my daughter” removes that house from the fiduciary’s statutory power, and the executor may sell it only with the daughter’s consent or an order of the Surrogate’s Court.
EPTL 11-1.1(b)(5)(E) supplies the route back. The power nonetheless exists, upon the approval of the Surrogate, where it is necessary for a SCPA 1902 purpose, so an executor whose estate owes more than its liquid assets can cover may ask the court to authorize the sale of a specifically devised house, and the devisee is cited and heard first. A fiduciary is obligated to satisfy estate creditors.
Can a House Be Sold Before Probate Is Complete?
Preliminary letters testamentary issued under SCPA 1412 confer the powers of administration on the nominated executor while the probate proceeding in New York is pending, including the power to take possession of, manage, and sell real property devised by the will. They do not confer the power to pay legacies or distributive shares, and specifically devised property may be sold only with the devisee’s written consent or a court order.
When Is a SCPA 1902 Petition to Sell Real Property Required?
Article 19 of the Surrogate’s Court Procedure Act lets the Surrogate’s Court direct the disposition of a decedent’s real property when the fiduciary’s own authority does not reach it. SCPA § 1901 defines disposition to include a sale, mortgage, exchange, lease, or a transfer to the persons entitled, and SCPA 1902 lists the purposes that support a sale: administration expenses, funeral expenses, the decedent’s debts, any transfer, estate, or other death tax, a debt or legacy charged on the property, distribution to those entitled, and any other purpose the court deems necessary. Under SCPA § 1904 a verified petition may be filed by a fiduciary or any person interested, must set out the condition of the estate, and requires process to every person interested and, if the court directs, to creditors.
Where the will withholds the power of sale and a specific devisee will not consent, or the letters are restricted, the petition is the only route, and a fiduciary facing beneficiaries who disagree about price often files one voluntarily, since a court-directed sale is far harder to attack on the accounting. SCPA § 1907 then directs the court to inquire into the facts, the value of the property, and the best manner and time of disposition, and the order may direct a public or private sale and fix its terms.
A contract of sale annexed to the SCPA 1902 petition and approved in the order lets the fiduciary deliver a deed without any further order, and no confirmation of the sale is required under SCPA § 1911(3). Where no contract is annexed, the fiduciary executes the order subject to the court’s approval and reports back.
A conveyance made under the order binds remainder, contingent, and future interests under SCPA § 1913, and under SCPA § 1922 a challenge to the disposition for a jurisdictional or procedural defect must be brought within 10 years of the order, after which the presumption of regularity is conclusive.
This is where a probate matter and a real estate matter become one file at Jules M. Haas, Attorney at Law, and I keep it that way. The petition, the order, the contract, and the closing statement are prepared in my office, and the proceeds are applied as the New York estate administration rules require once the deed is recorded.
What Liens and Taxes Follow a Decedent’s Home to Closing?
Estate tax is the lien that surprises families. Under New York Tax Law § 982, the New York estate tax is a lien on all property includible in the decedent’s New York gross estate for 15 years from the date of death. Title companies treat the lien as open until the Department of Taxation and Finance releases it, whatever the estate owes under the New York estate tax rules. Nearly every estate sale requires a release of lien for the parcel, issued on application once the liability is satisfied or provided for. The federal estate tax lien under 26 U.S.C. § 6324 runs 10 years from death.
Closing brings the state and local transfer taxes charged on the conveyance. The New York State real estate transfer tax under Tax Law § 1402 is $2 for each $500 of consideration, and a sale inside New York City carries the City’s own transfer tax, as well. Unpaid property taxes, water charges, the decedent’s mortgage, and judgment liens come out of the proceeds at the closing.
A purchaser who buys directly from a distributee or devisee, rather than from the estate, takes a title the decedent’s creditors can still reach for a time. Under SCPA § 1903, an Article 19 proceeding to satisfy a debt affects that title only where it is brought within 18 months after letters issued to the original fiduciary and those letters were granted within two years of the death.
What Documents Does a Title Company Require for an Estate Sale?
An estate sale in New York is cleared on papers the seller never had to produce while alive. The title company examines the letters first and expects a certificate dated close to the closing, since letters can be revoked or restricted. Where the sale rests on a Surrogate’s Court order or a devisee’s consent, a certified copy of the order or the acknowledged consent is recorded with the deed.
The deed into the decedent shows how the property was held. A tenancy by the entirety or a joint tenancy with right of survivorship passes to the surviving co-owner outside the estate, while a tenancy in common leaves the decedent’s share in it, so the differences among joint tenancy, tenancy by the entirety, and tenancy in common in New York decide what the executor has to sell. A deed from a prior owner who also died without a probated estate opens a gap that must be closed before the buyer’s title can be insured.
A cooperative apartment is different in kind. The estate owns shares in the apartment corporation and a proprietary lease rather than real property, so Article 19 does not govern the transfer and the fiduciary sells the shares under the EPTL 11-1.1 power that reaches other personal property. The cooperative board must approve the buyer, and the corporation wants the letters and the estate tax release before issuing a new stock certificate. I represent fiduciaries in cooperative and condominium apartment sales.
How I Handle a Probate Sale from Petition to Closing
I read the will and the deed together before anyone calls a broker. The will says whether the house passes under a specific devise or the residuary clause and whether the power of sale is granted, withheld, or silent, and the deed says whether the estate owns the whole property, a share, or nothing. Together they decide whether the sale needs letters alone, a devisee’s consent, or an Article 19 petition.
Jules M. Haas, Attorney at Law handles the probate sale of a decedent’s home in New York as a single engagement. The same office files the petition for letters in the Surrogate’s Court, obtains any order the sale requires, negotiates the contract, and attends the closing, and the lawyer who argued for the order is the one reading the title report.
On the contract, I have the fiduciary sign in a representative capacity and identify the estate by name, which under EPTL § 11-4.7 keeps the fiduciary from becoming personally liable on the agreement, and the property is sold as is, because an executor who never lived in the house cannot honestly represent its condition, and any pending court order becomes a contingency in the rider.
What to Do Before Listing a Decedent’s House
Pull the deed first, from the City Register’s ACRIS system for Manhattan, Brooklyn, Queens, and the Bronx, or from the Richmond County Clerk for Staten Island. How title was held decides whether the estate has anything to sell.
Read the will for two clauses: one that leaves the house to a named person, and one that grants or withholds a power of sale. Either changes the route.
It is best to not sign a listing agreement or a contract before it is reviewed by estate counsel.
You should discuss with estate counsel about paying the property taxes, water charges, and mortgage.
Sale proceeds are typically not distributed until creditor claims and the estate tax are settled and an accounting is approved.
Questions Executors Ask About Selling a Decedent’s Home in New York
Can an Executor Sell a House Without Going to Court in New York?
Usually, yes. Once letters testamentary have issued, EPTL 11-1.1(b)(5) authorizes the executor to sell estate real property at public or private sale without a separate court proceeding, unless the will limits the power or the property was specifically left to a named person. In an ordinary estate sale the court’s involvement ends when it issues the letters.
Do All the Heirs Have to Agree Before an Executor Sells the Home?
No. The power of sale belongs to the fiduciary, and a residuary beneficiary who dislikes the price cannot block the sale, though an imprudent sale can be challenged on the accounting. The answer changes where the will leaves the house to a specific person, whose written consent or a court order is then required, and where the property was co-owned, since the estate sells only the decedent’s share.
What Happens if the Decedent Signed a Contract of Sale Before Dying?
The contract does not die with the seller. SCPA § 1921 authorizes the fiduciary to execute the deed to the buyer named in the decedent’s contract, reciting the contract in the deed, and provides that no proceeding is required for the sole purpose of perfecting title. Any interested person may still petition the Surrogate’s Court to confirm the conveyance or to fix the balance owed.
Does the Estate Have to Pay New York Estate Tax Before the House Can Be Sold?
No, but the lien has to be dealt with. Tax Law § 982 makes the New York estate tax a lien on the property for 15 years from death, so the title company requires a release of the lien for the parcel before it will insure the buyer. The New York basic exclusion amount is $7,350,000 for deaths in 2026, and below it no tax is due, so the release is paperwork rather than payment.
Related Practice Areas
- Every estate sale begins with letters, and the petition, citation, and decree that produce them are the core of the practice’s New York trusts and estates practice.
- A buyer’s lender will not close without a policy, and the exceptions an estate sale produces are explained under title insurance in New York real estate closings.
- A cooperative apartment held through shares and a proprietary lease transfers by board approval rather than by deed, which is covered under New York co-ops and proprietary leases.
If you have been named executor or appointed administrator and the estate’s largest asset is a house or an apartment, the will, the deed, and the letters set the order of operations. There is no fee for an initial consultation, and one conversation is usually enough to say which route the sale takes. Call Jules M. Haas, Attorney at Law at (212) 355-2575 or reach me through the contact page for the practice’s office at 488 Madison Avenue about selling a decedent’s home in New York City, on Long Island, or in Westchester. I welcome clients who reside outside of New York and need representation handling a New York estate and selling New York real estate.