What Happens to a House When Someone Dies in New York?

It's one of the most common questions I hear from families after a loss. Mom died. She owned her home in Queens for 40 years. It's worth $800,000. Now what? Can we sell it? Who decides? Does it go to court? Can we keep living there?

The honest answer: it depends entirely on how the property was owned and what estate planning documents — if any — were in place. In New York, a house can transfer after death in several completely different ways, and each one has different legal procedures, different timelines, different costs, and different tax consequences. Getting clear on which path applies to your situation is the first thing to do.

This guide walks through each of the major transfer pathways — and explains what happens when no planning was done at all.

The Starting Point: How Was the Property Titled?

Pull out the deed. That single document tells you most of what you need to know. How a property is vested — whose names appear, and in what form of ownership — determines what happens to it at death. Here are the most common scenarios in New York:

Scenario 1: The Property Goes Through Probate

When someone in New York dies as the sole owner of real property — or as a tenant in common — their interest in the property becomes part of their probate estate. It doesn't pass automatically to anyone. The executor named in the will (or, if there's no will, an administrator appointed by the court) must go through the probate process in the New York Surrogate's Court for the county where the decedent lived.

Here's what that means practically:

• The will must be filed and admitted to probate
• The Surrogate's Court issues Letters Testamentary to the executor
• The executor is authorized to manage, sell, or transfer the real property
• Once creditors are paid and the estate is ready for distribution, the property can be transferred to beneficiaries by deed, or sold and the proceeds distributed

In New York, probate for a straightforward estate typically takes 9 to 18 months. A contested estate, or one with complex assets, can take much longer. During the probate period, the property remains titled in the estate's name. No beneficiary has the right to occupy, sell, or mortgage it without the executor's authorization and the court's approval where required.

Our step-by-step probate guide explains this process in detail.

What If There's No Will?

When someone dies without a will in New York — intestate — their real property passes under New York's intestacy statutes (EPTL Article 4). The rules are rigid. A surviving spouse gets the first $50,000 plus half of the remainder; the children share the other half. If there's no spouse, children get everything. If there are no children, parents inherit. The state sets the order — the decedent's actual wishes are irrelevant.

An administrator (not an executor, since there's no will) must be appointed by the Surrogate's Court, and the process is essentially the same as a probated will except the distribution follows the intestacy statute. Our guide on what happens when someone dies without a will in New York covers this in full.

Scenario 2: Joint Tenancy With Right of Survivorship

This is the most common non-probate transfer for married couples in New York. When property is held as joint tenants with right of survivorship — or by spouses as tenants by the entirety — the surviving owner automatically becomes the sole owner when the other dies. No probate. No court. No waiting.

The process is simple: the surviving owner records an affidavit of survivorship (or a certified death certificate) with the county clerk in the county where the property is located. The deed is then updated to reflect sole ownership. The transfer is immediate and effective as of the date of death.

There's an important distinction: joint tenancy (right of survivorship) is different from tenancy in common. Joint tenants automatically inherit each other's shares. Tenants in common each own an independent share that passes through their own estate — they do not inherit each other's shares automatically. Many New Yorkers who bought property with a sibling, business partner, or unmarried partner as tenants in common are surprised to discover that when one co-owner dies, their share goes to whoever that co-owner named in their will — not to the surviving co-owner.

Scenario 3: Property Held in a Revocable Living Trust

A revocable living trust is the most flexible and comprehensive probate-avoidance tool available in New York. When property is properly transferred (funded) into a revocable trust during the owner's lifetime, the trust — not the individual — holds title. At death, the successor trustee named in the trust document takes over and distributes the property according to the trust's terms. No probate. No Surrogate's Court. No public record of the transfer.

For a home worth $1.2 million in Brooklyn, this can mean the difference between a 12-month probate process costing $15,000 to $25,000 in legal and court fees versus a trust administration that takes 60 to 90 days and costs a fraction of that amount.

The trust approach also gives the grantor (the person who created the trust) the most control over what happens to the property. You can specify that a beneficiary gets the right to live in the home for their lifetime before it's sold. You can direct that the property be held for minor grandchildren until they turn 25. You can coordinate it with a Medicaid plan. A will-based transfer can't do any of those things without creating additional complexity.

One important note: the trust only controls property that was actually put into it. A home left in the owner's personal name — not transferred to the trust by deed — will still go through probate even if a trust was created. This "funding" step is where many DIY trust plans fail. For more on this, see our guide on how to fund a trust in New York.

Scenario 4: Life Estate Deeds

A life estate is a form of property ownership where one person (the life tenant) holds the right to live in and use the property for their lifetime, while another person (the remainderman) holds the underlying ownership interest that becomes possessory at the life tenant's death.

Here's a common example. Rosa owns a home in the Bronx. She deeds the property to her daughter Sofia, but reserves a life estate for herself. Rosa remains in the home, pays the taxes, maintains the property, and lives there exactly as before. When Rosa dies, Sofia automatically becomes the full owner — no probate, no court proceeding. Sofia records the death certificate with the county clerk and that's it.

Life estate deeds are popular for several reasons:

• They avoid probate entirely on the property
• They preserve the life tenant's right to live in the home for life
• The property may qualify for Medicaid's home exemption during the life tenant's lifetime
• The remainderman gets a stepped-up tax basis at the life tenant's death (more on this below)

The significant limitation: once you execute a life estate deed, you've given away the remainder interest. You can't sell the property, refinance it, or transfer it to someone else without the remainderman's consent. The remainderman becomes a co-owner during your lifetime. And if the transfer is within the Medicaid lookback period, it may affect Medicaid eligibility.

New York also recognizes "enhanced life estates" — sometimes called Lady Bird deeds — which give the life tenant the power to sell, mortgage, or revoke the transfer during their lifetime without the remainderman's consent. Enhanced life estates are used more commonly in some states than in New York, but they're a valid planning tool here when properly drafted. Our overview of life estates in New York explains the mechanics in more detail.

Selling the House During Probate: What's Allowed

When a house must go through probate, families often ask: can we sell it while the estate is being administered? The answer is generally yes — but with important procedural requirements.

Who Can Authorize the Sale?

The executor (or administrator) has the authority to sell estate real property under most circumstances — but the extent of that authority depends on whether the will grants broad sale powers and whether all beneficiaries consent. In some cases, particularly where a specific beneficiary was devised the property in the will, the executor may need Surrogate's Court approval before completing a sale.

Under New York law (EPTL 11-1.1), executors generally have the power to sell estate real property unless the will restricts that power. But many wills are silent, and New York's statutory rules govern in the absence of specific will provisions. When beneficiaries are cooperative, sales during probate are routine. When they're not — say, three siblings who disagree about whether to sell the family home in Park Slope — the court may need to intervene.

The Practical Steps

1. The executor obtains Letters Testamentary from the Surrogate's Court
2. A qualified estate attorney verifies that the executor has authority to sell under the will and applicable law
3. The property is listed and a purchase contract is signed by the executor on behalf of the estate
4. The executor — not the beneficiaries — signs the deed at closing
5. The deed is recorded in the county clerk's office conveying clear title to the buyer
6. The net sale proceeds flow into the estate account for distribution after creditors and taxes are paid

One common delay: title companies require "proper probate" before they'll insure a sale. This means the Letters Testamentary must be issued and in good standing. You can't close a sale before probate has been initiated and letters issued. For families in a hurry to sell, this is a frustrating but unavoidable reality of the system.

What About the Mortgage?

If the property has a mortgage, death doesn't eliminate the debt. The estate must continue making mortgage payments (from estate funds) while the property is in administration. Failing to do so can lead to foreclosure — which would cost the estate far more than the mortgage payments. Federal law (the Garn-St. Germain Act) prevents most lenders from calling the mortgage immediately due upon the owner's death when the property is inherited by family members, which provides some protection.

Taxes When You Inherit or Sell a House in New York

The Stepped-Up Cost Basis Rule

This is one of the most valuable — and least understood — tax benefits of inheriting property. Under federal tax law (IRC Section 1014), when you inherit property, your tax basis in that property is "stepped up" to the fair market value as of the date of death. This means most inherited properties in New York can be sold immediately after inheritance with little or no capital gains tax, regardless of how much the property appreciated during the decedent's lifetime.

Here's a concrete example. Elena bought her Corona, Queens home in 1985 for $80,000. When she dies in 2026, it's worth $750,000. Her daughter inherits the home through the estate. Her daughter's basis is now $750,000 — not $80,000. If she sells the home one week later for $760,000, she has only $10,000 in capital gain. Without the step-up, she would have had $670,000 in gain.

The step-up applies regardless of how the property is transferred — through probate, through a revocable trust, through a life estate — as long as the property was included in the decedent's taxable estate for federal estate tax purposes. It doesn't apply to irrevocable trusts funded more than a year before death, which is one reason irrevocable trust planning requires careful tax analysis alongside Medicaid and asset protection analysis.

New York Real Property Transfer Tax

When a house is sold in New York, the seller pays the New York State real property transfer tax — currently $2 per $500 of consideration (0.4%). In New York City, there's an additional NYC real property transfer tax ranging from 1% to 2.625% depending on the sale price and property type. For residential properties selling above $500,000 in New York City, the combined state and city transfer taxes are significant — often $15,000 to $35,000 or more on a typical Queens or Brooklyn home sale.

There's also the "mansion tax" — a 1% buyer's tax on residential property purchases of $1 million or more, with higher rates up to 3.9% for purchases above $25 million. The mansion tax is paid by the buyer, not the estate, but it affects the sales price negotiations.

New York Estate Tax on Real Property

New York has its own estate tax with a 2026 exemption of approximately $7.16 million. If the total taxable estate — including the real property — exceeds that threshold, New York estate tax may be owed. Note that New York's estate tax has a "cliff" effect: if the taxable estate exceeds 105% of the exemption, the full estate value (not just the amount above the threshold) is taxed. This makes planning especially critical for estates in the $7 million to $8 million range in New York. Our guide to the New York estate tax in 2026 explains this in full.

The Medicaid Complication: Estate Recovery After Death

If the deceased was a Medicaid recipient, New York's Medicaid estate recovery program can make a claim against the estate — including the home — to recover what Medicaid paid in benefits. This claim is limited to the probate estate. Property that passes outside of probate — through a trust, through joint tenancy, through a life estate remainder — is generally not subject to estate recovery.

For families dealing with a Medicaid estate recovery claim, the options are limited after the fact. The most effective protection is proactive: transferring the home into an irrevocable trust or using a life estate deed before Medicaid benefits begin, well outside the applicable lookback period. A claim from the estate recovery program isn't automatic — the family must respond to the notice and, in appropriate circumstances, an attorney can negotiate reductions or deferrals.

Our guides on New York Medicaid spend-down rules and Medicaid asset protection planning address this in depth.

When Multiple Heirs Inherit Property Together

This situation creates real complications. Three siblings inherit mom's two-family house in Flatbush as tenants in common — one-third each. One sibling wants to sell immediately. One wants to keep it and rent it out. One wants to live there. No one agrees.

Under New York law, any co-owner can force the sale of jointly owned property through a partition action in New York Supreme Court. A partition lawsuit asks the court to either divide the property (rarely practical for a house) or order a sale and divide the proceeds. Partition actions are expensive, slow, and adversarial — often destroying family relationships in the process.

The better solution: estate planning documents that address this scenario in advance. A will that specifically directs the executor to sell the property and distribute proceeds, or a trust with a clear distribution timeline, prevents the impasse before it starts. For families dealing with inherited property disputes right now, early mediation is almost always preferable to litigation. Our guide to handling an inheritance in New York addresses co-owner situations.

What You Should Do Right Now

If you own real property in New York, here's what good planning looks like:

• Review your deed. Know how the property is titled. If it's in your name alone, it will go through probate. Is that what you want?
• Consider a revocable trust. For most homeowners, a revocable trust funded with the property is the cleanest, most flexible probate-avoidance option. It doesn't affect your ability to live there, sell it, or refinance. It avoids the Surrogate's Court entirely.
• Consider a life estate deed if Medicaid planning is a concern. If long-term care costs are on the horizon, a life estate deed — structured carefully — can protect the home from Medicaid estate recovery while preserving your right to live there. But the timing and structure matter enormously.
• Make sure your will addresses the property clearly. Even if you have other transfer mechanisms in place, a pour-over will provides a backstop for any property not caught by your other planning.
• Coordinate the tax picture. The stepped-up basis benefit is powerful. Don't inadvertently transfer property in a way that forfeits it — particularly with irrevocable trusts and outright gifts during life.

If you're dealing with a recent death and a property that needs to be addressed, visit morganlegalny.com/probate for more information on our New York estate administration practice. Our team can assess the specific situation quickly and tell you what steps are needed. You can also read our overview of transferring property after death in New York for additional background.

How Morgan Legal Group Helps

At Morgan Legal Group, P.C., we help New York families navigate property transfers before and after death. Whether you need to structure ownership of a Manhattan co-op, a Brooklyn two-family, a Queens single-family home, or a Bronx apartment building, we bring 20 years of New York real estate and estate planning experience to every matter.

For families going through probate right now, we handle all Surrogate's Court filings, work with title companies on estate sales, and ensure the transfer documents are executed correctly. For clients planning ahead, we design trust structures, life estate deeds, and ownership strategies that minimize probate costs, avoid Medicaid estate recovery, and maximize the tax benefits available to heirs.

Call us at (212) 561-4299 or stop by our office at 15 Maiden Lane, Suite 905, New York, NY 10038. We serve homeowners and estates throughout New York City and the surrounding counties. The sooner you plan, the more options your family will have.