Real estate is where probate gets real. A bank account is easy to distribute. A house — the family home, a rental building, a co-op — is a different story. Executors call me constantly with the same question: "Am I even allowed to sell it, and how?" The short answer is yes. Here's the how.
First, the Executor Needs Authority
You cannot sell estate real estate until the Surrogate's Court has appointed you and issued Letters Testamentary (with a will) or Letters of Administration (without one). Those letters are your proof of authority — no title company or buyer's attorney will close without them. See our guide on Letters Testamentary in New York.
Do You Need the Court's Permission?
It depends on how the authority is granted:
- Will grants a power of sale: Most well-drafted wills authorize the executor to sell real property. In that case, you generally do not need separate court approval for each sale.
- No will, or the will is silent: An administrator — or an executor without an express power of sale — may need to petition the court for permission before selling.
If you're an administrator navigating a sale without a will, review the difference in our guide on executor vs. administrator.
Step by Step: Selling the House
Step 1: Get an Appraisal
Obtain a formal appraisal or a broker's price opinion. The executor has a fiduciary duty to sell at fair market value, and a documented valuation is your best protection against a beneficiary later claiming you sold too low.
Step 2: Secure and Maintain the Property
Keep insurance active, pay property taxes and utilities from estate funds, and maintain the home. An executor who lets a house deteriorate can be held personally responsible for the loss.
Step 3: List and Accept an Offer
Market the property and negotiate at arm's length. Be especially careful about selling to yourself or a relative — that's a conflict of interest that draws court scrutiny and beneficiary objections.
Step 4: Notify the Beneficiaries
Transparency prevents disputes. Keep beneficiaries informed of the sale price and terms. If everyone consents in writing, the sale proceeds smoothly.
Step 5: Close and Pay Off Liens
At closing, the outstanding mortgage, tax liens, and any judgments against the property are paid from the proceeds. The net proceeds flow into the estate.
Fiduciary reminder: As executor, the house isn't yours — it belongs to the estate and its beneficiaries. Every decision must serve their interests. Document your appraisal, your marketing, and your reasoning, and you'll be protected.
What About the Mortgage and Debts?
A mortgage doesn't vanish at death. It's paid from the sale proceeds at closing, along with any other liens. If the estate is keeping the property rather than selling, someone must keep the mortgage current. For how estate debts work generally, see our guide on what happens to debt when you die in New York.
Selling a Co-op in Probate
A New York co-op is personal property — shares in a corporation, not real estate — so the co-op board and managing agent impose their own transfer and approval requirements. This often drives the timeline for Manhattan and Brooklyn estates. Factor board approval into your plan.
Taxes on a Probate Sale
Good news for heirs: inherited property generally receives a "stepped-up" cost basis to its value at the date of death, which can dramatically reduce capital gains tax if the home is sold soon after. The estate may still owe New York or federal estate tax depending on size — see our New York estate tax overview.
When to Call a New York Probate Attorney
Selling estate real estate combines probate rules, fiduciary duty, and a real estate closing — a lot to juggle. Our probate practice guides executors through the whole process, and we help families plan ahead so a home can pass without probate at all. For official court information, visit nycourts.gov.
Frequently Asked Questions
Can you sell a house during probate in New York?
Yes. Once the executor receives Letters Testamentary (or Letters of Administration if there is no will), they generally have authority to sell estate real estate, subject to their fiduciary duty to obtain a fair price.
Do you need court permission to sell a house in probate?
If a valid will gives the executor the power to sell, court permission usually is not required. When there is no will, or the will is silent, the administrator may need court approval before selling.
How is the sale price determined?
The executor must sell for fair market value. An appraisal or broker's price opinion supports the price and protects the executor from claims by beneficiaries that the property was sold too cheaply.
What happens to the mortgage when selling a probate house?
The outstanding mortgage and any liens are paid from the sale proceeds at closing. Whatever remains becomes part of the estate for distribution to the beneficiaries.
Can beneficiaries stop the sale?
Beneficiaries who object can raise the issue with the Surrogate's Court, especially if they believe the price is unfair or a conflict of interest exists. Clear appraisals and transparency reduce this risk.
