Selling a House as an Executor in New York

An executor in New York can usually sell the decedent's house without asking the beneficiaries for permission and without a separate court order. The authority comes from the will and from the Estates, Powers and Trusts Law. The steps below follow the order in which they come up in practice: confirming your power to sell, getting the house ready and appraised, listing it, closing, paying what the estate owes, and distributing what is left. If you are a beneficiary rather than an executor, the same steps tell you what you are entitled to expect.

Step 1: Confirm you have the power to sell

Start with the will. Most New York wills either grant the executor an express power to sell real property or incorporate the statutory fiduciary powers by reference. Even if the will says nothing, EPTL 11-1.1(b)(5) gives every fiduciary the power to sell real property, unless the will takes that power away or the property is specifically devised. That statutory power is what most title companies rely on when they insure a sale by an executor.

Three situations change the analysis:

• Specific devise: If the will leaves the house itself to a named person ("I give my house at 123 Main Street to my daughter"), the statutory power of sale does not reach it. The house belongs to the devisee, and the executor's job is to deed it to her, not to sell it. The exception is where the estate's other assets are not enough to pay debts and administration expenses; specifically devised real property is the last asset to be used for that purpose, and the executor should obtain a court order under SCPA Article 19 before touching it.
• Restrictions on the letters: Read the letters testamentary themselves, not just the will. Under SCPA 702, the Surrogate can issue letters that restrain the fiduciary from selling or encumbering real property without further court order. Preliminary letters issued under SCPA 1412 frequently carry this restriction. If your letters say the power to sell is limited, you need a court order before you sign a contract, no matter what the will says. See our page on letters testamentary.
• No will: An administrator has the same statutory power under EPTL 11-1.1, but title to real property vests in the distributees at death subject to administration. Many title companies will not insure an administrator's deed without either written consents from all distributees or an order under SCPA Article 19. Plan for that early. See letters of administration.

Step 2: When you need a Surrogate's Court order

SCPA Article 19 governs the disposition of real property by a fiduciary. A petition under SCPA 1901 and 1902 asks the court to authorize a sale for a listed purpose: paying funeral and administration expenses, paying debts and taxes, satisfying legacies, making distribution, or any other purpose the court finds to be in the estate's best interest. You will need an Article 19 proceeding when:

• the will withholds or limits the power of sale;
• the letters restrain you from selling without court approval;
• the house is specifically devised and must be sold to pay estate obligations;
• a beneficiary with a plausible claim objects and you want the protection of a court order before closing; or
• the title company refuses to insure without one.

An Article 19 proceeding requires citation to the interested parties and adds time. In the New York City Surrogate's Courts (New York, Kings, Queens, Bronx and Richmond counties) the calendar is often slower than in Nassau or Suffolk, and uncontested matters can still take months to reach a decree. Build that into any contract deadline. Our sample NYC probate timeline shows where a real property sale fits in the overall schedule.

Step 3: Secure the house and keep it insured

Once letters issue, the executor is responsible for the property. Change the locks, locate the deed and mortgage statements, keep the utilities on at a level that prevents frozen pipes, and keep paying the mortgage, taxes and insurance from estate funds. Call the homeowner's insurance carrier: many policies limit or cancel coverage after a house has been vacant for 30 or 60 days, and a vacant-property endorsement may be needed. If a family member resists giving you the keys, see access to the house after death.

If a beneficiary or other relative is living in the house, you have a separate problem to solve before you can deliver vacant possession to a buyer. The executor can demand use and occupancy and, if necessary, bring a proceeding to recover possession. That topic is covered on beneficiary living in the inherited house.

Step 4: Get a date-of-death appraisal

Order a written appraisal from a licensed appraiser valuing the house as of the date of death. You need it for three reasons:

• Income tax basis: Under Internal Revenue Code section 1014, inherited property takes a basis equal to its fair market value at death (the "stepped-up basis"). When the estate sells, gain or loss is measured from that number, not from what the decedent paid. Without a credible appraisal you have no defensible basis figure.
• Estate tax: If the estate is large enough to require a New York estate tax return (Form ET-706) or a federal return (Form 706), the appraisal supports the reported value. New York's basic exclusion amount is adjusted each year and currently exceeds $7 million; the federal exclusion is higher.
• Protecting yourself: A documented appraisal is your proof to the beneficiaries that you sold at market value. If a beneficiary later claims you sold too cheaply, the appraisal and the marketing history are your defense.

An online estimate or a broker's price opinion is not a substitute. Pay for a full appraisal; it is a proper estate expense.

Step 5: Title, liens and the estate tax lien

The deed stays in the decedent's name until closing. You will not re-deed the house into your own name or into the name of the estate. At closing you sign an executor's deed, which recites the decedent's death, the probate of the will and the issuance of letters, and conveys the property directly from the estate to the buyer.

Before you list, pull a title report. Common problems that surface on estate property:

• an old mortgage that was paid off but never discharged of record;
• a reverse mortgage that became due at death and is accruing interest;
• unpaid real property taxes, water charges or Department of Buildings violations (in New York City these are liens that must be cleared at closing);
• Medicaid recovery claims against the estate; and
• a co-owner on the deed, which may mean the estate owns only a share. See house in two names and partition of real property.

Expect the title company to ask about the New York estate tax lien. Under Tax Law section 982, New York estate tax is a lien on the decedent's real property for 15 years after death. Depending on the estate's size, the title company will require either a release of lien (Form ET-117) or an affidavit that no estate tax return was due.

Step 6: Listing the house and accepting an offer

You may hire a licensed real estate broker, and the commission is an administration expense paid from the sale proceeds. You are not required to sell to a beneficiary who wants the house, and you are not required to hold an auction. What you are required to do is act prudently: market the property, consider the offers you receive, and accept one that is at or near the appraised value or justify in writing why you accepted less.

Give the beneficiaries notice. The statute does not require their consent when you hold a power of sale, but a short letter telling them the list price, the appraised value and the accepted offer removes most of the suspicion that leads to litigation. Keep copies of every offer, including the ones you rejected.

The contract of sale should state that the seller is the estate acting through its executor, should be signed in your fiduciary capacity ("Jane Smith, as Executor of the Estate of John Smith"), and should include a contingency if you still need a court order or letters without restriction. Do not sign a contract before letters issue. A contract signed by a nominated executor who has not yet been appointed may not bind the estate, and a buyer's lawyer will not accept a closing date you cannot control.

Co-ops and condominiums

A New York co-op apartment is personal property, not real property. The estate owns shares and a proprietary lease, and the sale is a transfer of those shares, which requires board approval. The board can reject a buyer for almost any lawful reason, and neither the executor nor the Surrogate's Court can force approval. Maintenance keeps accruing while you wait, and most proprietary leases require the estate to keep paying it. Budget for several months of carrying costs and read the lease for any provision on transfers at death. The access and possession issues for apartments are discussed at access to an apartment after death.

A condominium unit is real property and is sold by executor's deed. The board usually holds only a right of first refusal, which is far less of an obstacle than co-op approval, though the managing agent will still require estate documents and payment of any common charge arrears.

Step 7: Closing documents and transfer taxes

At closing the executor signs the deed and the transfer tax returns. Bring certified copies of the letters dated within six months of closing (most title companies insist on fresh certificates), a certified death certificate, and your photo identification. The transfer documents in New York are:

• Form TP-584: the New York State real estate transfer tax return. The State tax is $2 for every $500 of consideration (0.4 percent) under Tax Law section 1402, paid by the seller unless the contract says otherwise.
• Form RP-5217: the Real Property Transfer Report filed with the deed. In New York City it is prepared through ACRIS.
• NYC-RPT: the New York City Real Property Transfer Tax return for property in the five boroughs. The City tax on a residential sale is 1 percent of consideration up to $500,000 and 1.425 percent above that. Co-op sales in the City also pay this tax and file TP-584 but not RP-5217.
• Mansion tax: paid by the buyer on residential purchases of $1 million or more, so it does not reduce the estate's proceeds, but it affects what buyers will offer at that price point.

Your attorney will also deliver a copy of the will, the probate decree and an affidavit of title. If the house was specifically devised and is being sold under an Article 19 decree, the decree is recorded with the deed.

Step 8: Where the money goes

The net proceeds go into the estate bank account, titled in the name of the estate under the estate's tax identification number. EPTL 11-1.6 requires every fiduciary to keep estate property separate from his own and to conduct every transaction in his name as fiduciary. Depositing sale proceeds into your personal account, even for a day and even with the intention of moving them, is commingling and is one of the fastest ways to get removed under SCPA 711.

From the estate account you pay, roughly in this order: the mortgage and liens that were not paid at closing, the broker and closing costs, funeral and administration expenses, the decedent's debts, and taxes. New York law gives creditors seven months from the issuance of letters to present claims (SCPA 1802). An executor who distributes before that period runs out is personally liable to creditors who later appear, so most executors hold the proceeds until the seven months pass.

Income tax on the sale

The estate, not the beneficiaries, reports the sale on its fiduciary income tax returns (federal Form 1041 and New York Form IT-205) for the year of closing. Gain is the amount by which the net sale price exceeds the stepped-up basis plus selling expenses. Because the basis was reset at death, a house sold within a year or two of death often shows little gain and sometimes a loss. Whether a loss is deductible depends on how the property was held after death; a house a beneficiary continued to live in rent-free is treated differently from one that sat vacant and listed. Have the estate's accountant look at this before the return is due, because a loss that passes out to the beneficiaries in the estate's final year can be worth real money to them.

Executor commissions on real property

Under SCPA 2307, an executor's commissions are computed on the value of property received and paid out. The proceeds of a house the executor sells count toward commissions. Real property that is specifically devised and simply deeded to the devisee does not count, because the executor never "receives" it in the statutory sense. This distinction is a frequent source of friction when the executor is also a beneficiary, and it is worth explaining to the family before closing.

Step 9: Distribution, accounting and releases

When the debts are paid and the creditor period has run, you distribute. Before any beneficiary receives a share, prepare an informal accounting showing what came into the estate, what went out (with the sale of the house as the largest line item), and how the balance is divided. Ask each beneficiary to sign a receipt, release and refunding agreement. The release protects you from a later claim about the sale price or the expenses; the refunding clause protects the estate if an unknown creditor or tax bill appears after distribution.

If a beneficiary refuses to sign, do not distribute to that person on a handshake. File a formal accounting proceeding under SCPA 2208 and let the court settle the account. The decree on a judicial settlement gives you the same protection a release would have. See estate accountings.

Selling the house to yourself or to a beneficiary

An executor who wants to buy the estate's house, or to sell it to a relative on favorable terms, has a conflict of interest. New York law does not treat this as automatic theft, but it does treat it as a transaction the beneficiaries can undo. A fiduciary's self-interested purchase is voidable at the request of a beneficiary without any showing that the price was unfair; the courts do not inquire into fairness once self-dealing is shown (Matter of Rothko, 43 N.Y.2d 305 (1977)). The remedies are surcharge, removal under SCPA 711 and 719, loss of commissions and payment of the beneficiaries' legal fees. Criminal larceny under Penal Law 155.05 requires an intent to deprive the owner of the property; a purchase at a documented fair price with full disclosure is not larceny, though a purchase at a sham price can be.

The safe routes are two: obtain the written, informed consent of every adult beneficiary after disclosing the appraisal and the terms, or petition the Surrogate's Court for approval of the sale. Where a beneficiary is a minor or under a disability, court approval is the only route. The details of structuring a buyout, pricing it and documenting the consents are on our page on buying out an inherited residence. Beneficiaries who suspect an executor is steering the house to himself should read breach of fiduciary duty and removing an executor or administrator.

Ancillary executors

If the decedent lived in another state but owned a house in New York, the out-of-state executor cannot sell it on the strength of foreign letters. The executor must obtain ancillary letters from the Surrogate's Court in the county where the property sits (SCPA Article 16), and the steps above then apply in the same way. See ancillary letters in New York.

Frequently asked questions

Does an executor need the beneficiaries' consent to sell the house?

No, if the will or EPTL 11-1.1(b)(5) gives the executor a power of sale and the letters are unrestricted. Consent is required when the executor or a relative is the buyer, when the house is specifically devised, or when the letters restrain the sale. Giving notice is always good practice even when consent is not required.

How soon after death can the house be sold?

Not before letters issue. In an uncontested New York City probate that is commonly several months after death; Long Island courts are often faster. Preliminary letters can be obtained sooner but usually restrict the sale of real property. A contract can be signed once unrestricted letters are in hand, and closing typically follows 60 to 90 days later, subject to the title and estate tax lien items above.

Can one heir block the sale?

A beneficiary cannot veto a sale the executor is authorized to make. A beneficiary can petition the Surrogate to restrain the sale under SCPA 702 or to remove the executor, and the court will listen if there is evidence the price is below market or the executor has a conflict. A beneficiary who is the specific devisee of the house is in a different position: the house is hers unless it must be sold to pay estate obligations.

Does the house have to be deeded into the estate's name first?

No. The executor conveys directly from the decedent's estate to the buyer by executor's deed. Deeding the property into the executor's own name is unnecessary, generates transfer tax filings and raises immediate self-dealing questions.

Who pays the capital gains tax?

The estate reports the sale on its fiduciary return. Because the basis steps up to date-of-death value, gain is usually small when the sale follows death closely. If the estate distributes the proceeds in the same tax year, the gain or loss may pass through to the beneficiaries on Schedule K-1.

What if the executor wants to keep the house?

The executor can buy it, but only at fair market value established by an independent appraisal and only with the written consent of all beneficiaries or a court order. See buying out an inherited residence.

Related pages

• A sample NYC probate timeline
• Letters testamentary
• Access to the house after death
• Beneficiary living in the inherited house
• Buying out an inherited residence
• Beneficiary buying property from a trust
• Borrowing against inherited property
• Beneficiary and executor conflicts
• Estate accountings

Speak with a New York estate attorney

If you are an executor preparing to sell estate real property anywhere in New York, or a beneficiary with questions about a sale that is under way, New York estate attorney Albert Goodwin, Esq. can help. Call (212) 233-1233 to discuss the will, the letters and the property.

About the author

Albert Goodwin, Esq. is an attorney admitted to practice in New York. His practice concentrates on estate administration, probate and estate litigation in the Surrogate's Courts of New York City and Long Island, including the sale and distribution of estate real property. This page is general legal information for New York estates and is not legal advice for any particular matter; statutes and tax thresholds cited here are subject to change and should be confirmed before acting. Last reviewed by the author in 2025.