Mr. Goodwin is everything you want in an attorney: professional, honest, thorough, and genuinely caring. He always explains things clearly, so I understood exactly what was happening and what to expect next. His attention to detail and persistence really stood out. Looking back, I feel lucky to have found him. He guided me through the whole process expertly, and I deeply appreciate all his hard work. Would definitely recommend him to anyone needing legal help.
In New York, you typically cannot sell your deceased parent's house without probate.
There is an exception if you owned the house together with your parent with a right of survivorship, in which case, if you are the sole surviving joint owner with rights of survivorship with your parent and your parent died, you can sell the house without probate.
Knowing the different types of real property ownership in New York and its relation with the probate laws is crucial in understanding whether you can sell your deceased parent's house without probate. An estates attorney like us will be able assist you in determining your ability to sell depending on your unique circumstances.
When Probate is Required to Sell a House in New York
As a general rule, probate is required to sell the decedent's real property in New York. This rule, however, refers to real property that the decedent solely owned in his own name without any joint owners or designated beneficiaries. In this case, the only person with authority to sell the decedent's house is the court-appointed administrator (if the decedent died without a will) or executor (if the decedent died with a will).
If the decedent left no debts, the administrator or executor would normally just transfer the property straight to the heirs or beneficiaries. And then the beneficiaries or heirs can sell the house if they wish. However, if the decedent had debts and the other estate assets are not sufficient to pay for the debts, the executor or administrator would sell the decedent's house, apply the net proceeds for the payment of debts, and distribute the remaining proceeds to the heirs or beneficiaries.
Although a simplified process exists in New York for estates below $50,000, this simplified process cannot apply in cases where the estates owns real property.
When Probate is Not Required to Sell a House in New York
Selling a house without probate is possible in New York when the property is under joint tenancy with rights of survivorship, a trust, or a transfer on death deed.
If the decedent owned the property in joint tenancy with rights of survivorship, the surviving owner automatically inherits the property upon the decedent's death. No probate is required to transfer ownership because the property passes directly to the surviving owner. The surviving owner simply has to submit the death certificate of the deceased joint owner and an affidavit of survivorship to the county clerk in order to transfer the property to the survivor's name. Thereafter, the survivor can sell the property without going through probate.
If the property is held in a trust, the trust becomes the owner of the property, and the trustee manages it according to the trust's terms. Upon the decedent's death, the successor trustee can transfer the property to the beneficiaries without probate, if such transfer is mandated by the trust terms. The trustee has the authority to sell the property without court supervision or probate.
Lastly, when a transfer on death deed is recorded on the property and such deed was executed after July 19, 2024, the property transfers directly to the designated beneficiary without going through probate. The beneficiary can then sell the property without probate, as they become the legal owner upon the decedent's death.
Steps to Take When Selling the Property Without Probate
If, based on the above, it appears that you can sell your deceased parent's house without going through probate, you need to take the following steps:
(a) Get the property appraised
Inheriting property, even when probate is avoided, often comes with a significant tax advantage known as a step-up in basis. This means that the property's tax basis is adjusted to its fair market value at the time of the decedent's death. For example, if you inherit property through a transfer-on-death deed, your basis will be the property's market value when the decedent died, rather than the original acquisition cost plus any improvement expenses incurred by the decedent. This step-up in basis is crucial when you decide to sell the inherited property, as your taxable gain will be calculated using the stepped-up basis instead of the decedent's original basis. Consequently, this can lead to a substantial reduction in your income tax liability. To determine the house's market value at the time of decedent's death, an appraisal is required.
(b) Verify your ownership rights
Review the property deed and title documents to ensure that you can sell the property without probate. This can happen when the property is held under joint tenancy with rights of surviviorship, a trust, or transfer on death (TOD) deed. If you are a joint owner or beneficiary in a transfer on death deed, you can have the house transferred to you by submitting the death certificate plus an affidavit with the county clerk. Once property has been transferred to you, you can sell it to any third party. If the property is under a trust, it is the trustee who can sell the property (for as long as such sale is in accordance with trust terms) and distribute the net proceeds to the beneficiaries.
(c) Work with a title company
Hire a reputable title company to conduct a thorough title search, which will uncover any liens, mortgages, or encumbrances affecting the property's marketability, confirm ownership, and identify potential issues. Obtain title insurance to safeguard against unforeseen defects or challenges, providing financial protection for the buyer and lender. The title company will issue a commitment detailing the policy terms and requirements. Collaborate with them to coordinate the closing, prepare necessary documents, facilitate fund exchanges, record the deed, and disburse proceeds accordingly.
(d) Consult a probate attorney
Schedule a consultation with an experienced New York probate attorney, like us at the Law Offices of Albert Goodwin. Discuss the specific details of the property, the decedent's estate, and any potential challenges or concerns. Obtain guidance on the legal requirements and best practices for selling or transferring the property without probate.
Determining if probate is necessary involves reviewing the decedent's assets and ownership structures, analyzing whether assets were owned solely by the decedent or jointly with others, and investigating the existence of any trusts, transfer-on-death deeds, or beneficiary designations.
Seeking guidance from a skilled New York estate probate attorney offers numerous benefits. Should you need assistance in analyzing your situation on whether you can sell your deceased parent's house without probate, the Law Offices of Albert Goodwin is here for you. We represent heirs, beneficiaries and executors throughout the state of New York, including all five boroughs of New York City (Manhattan, Brooklyn, Queens, The Bronx, and Staten Island), Long Island, and Upstate New York. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].
About the Author
Albert Goodwin Esq. is a licenced New York attorney with over 17 years of courtroom experience. His extensive knowledge and expertise make him well-qualified to write authoritative articles on a wide range of legal topics. He can be reached at 212-233-1233 or [email protected].
