Estate and probate guide
Who gets to be in charge, who inherits, what the court needs first, and why an early call can save months.
When someone dies without a will, New York doesn’t let the family decide among themselves who handles the house. The law decides who can apply to run the estate, and the law decides who inherits. The process is called administration, the person the court appoints is the administrator, and the authority they receive is Letters of Administration.
Your estate attorney (or elder law attorney) handles the court. I handle the house. If you don’t have an appropriate attorney yet, I can help you get oriented. I sell estate property in Queens, Brooklyn, Manhattan and the Bronx, both Nassau and Suffolk Counties, and Westchester, and the road is much the same in every county.
↓ See the flowchart: how a house is sold when there’s no will
The general administration road for a house in New York when there’s no will. The dashed boxes are the turn-offs. Your estate may not follow this order.
Administration only reaches property the person owned in their own name. A surviving joint owner with a right of survivorship, a spouse who held it as tenants by the entirety, a trust, or a recorded transfer on death deed (Real Property Law section 424) can take the house outside the estate. In New York City, check ACRIS. In Nassau, Suffolk and Westchester, check the County Clerk’s records. I check title as part of my review.
Letters of Administration can take a long time, especially when the heirs are cousins rather than children. Sometimes a sale can happen outside of administration, by the heirs at law themselves. Whether that’s possible, or prudent, depends on the family, the title and what the title company will insure. An early consultation with me lets us sort that out before months go by.
The law sets the order: the surviving spouse first, then the children, the grandchildren, either parent, brothers and sisters, and then other relatives, preferring whoever stands to inherit the most (SCPA 1001). Where several people have an equal right, such as three adult children, the court can appoint one or more of them, and the others usually sign renunciations or are served so they can be heard. If no family member qualifies or wants the job, the county’s Public Administrator may take over the estate.
If the person lived outside New York, the estate is usually opened where they lived, and an ancillary proceeding in the county where the house is follows (SCPA Article 16).
The petition asks for Letters of Administration and lays out the family tree, far enough to show who inherits. When the heirs are cousins rather than children, proving it takes more time and more documents, so it’s worth gathering birth, marriage and death certificates early.
The court can require the administrator to post a surety bond that protects the heirs and creditors. It’s based mostly on the estate’s personal property and about 18 months of any rent, and the court can reduce or waive it (SCPA 801).
A common belief is that an administrator always needs a separate court order to sell a house. That’s not what the statute says. New York gives every fiduciary, administrators included, the power to sell estate real estate unless the court’s decree or the letters limit it (EPTL 11-1.1). Letters are sometimes issued with restrictions, and when they are, those restrictions control. Where a sale needs the court’s permission, the Surrogate can authorize it (SCPA 1902). I look at what yours allow with you, and find out early what the title company will need to insure the buyer.
It happens more than people think. Nobody wants to be the administrator, or the cousins on one side won’t sign anything the other side touches, and the house sits. Years go by. A reverse mortgage keeps growing, taxes and insurance lapse, the house deteriorates, and the lender moves to foreclose. By then the estate may be wasted. Sometimes it’s still salvageable, and sometimes it isn’t. The earlier I’m involved, the more options there usually are.
Letters can take months. The house doesn’t wait for them, and whoever is in charge can be answerable for what happens to it in the meantime. Early on, it’s prudent to:
If you’re not local, I can help with all of this.
Heirs usually inherit with a “stepped-up” tax basis: the property’s fair market value on the date of death (Internal Revenue Code section 1014). That number can matter a great deal when the house is sold.
The listing price is a different number: what the house is likely to sell for now, in its current condition, in this market. A Retroactive Valuation as of the date of death is a separate service I offer.
None of these is unusual. Any one of them can stall or derail an estate sale if it isn’t anticipated and handled by someone who has worked through it before.
On the price, the timing, or whether to sell at all. It can stall everything, and the house usually pays for it. Having someone experienced in the middle of it is prudent.
A relative with no lease, or a tenant nobody knew about. Their status needs to be sorted out early, and how depends on the facts.
Many of my estate sellers live out of state. Signing can often be handled remotely, and I go to the property so you don’t have to, with photos and video when it’s appropriate.
If the person lived in another state but owned a house here, the estate is usually opened there first, and then an ancillary proceeding in New York gives authority over the house. It adds time, so it’s worth planning early.
When the family can’t get along, a house can sit for years. Meanwhile a reverse mortgage or other debt keeps growing, taxes and insurance can lapse, and the lender may move to foreclose. Sometimes the estate is still salvageable, and sometimes it isn’t. The earlier I’m involved, the more options there usually are.
Cleanouts, repairs and maintenance. I have contacts and resources for all of it, and I’ll shepherd you through it. Whether to clear and fix or sell as-is is a numbers question, and I help you evaluate it.
Old building violations, unpaid water charges, a mortgage nobody marked satisfied. Found early, they’re usually manageable. Found at closing, they can be expensive.
Investors tend to be sophisticated buyers, and once you sign a contract, the leverage shifts. Talk to me before anyone signs anything.
The sale works much like an executor’s sale: documented pricing, the market exposure the situation calls for, and the administrator signing the contract and the deed for the estate. Who hears what, and when, depends on the situation. The details are in the companion guide, Selling a house in probate. After debts, expenses and any taxes, what’s left is divided by law:
New York’s order of inheritance when there’s no will, simplified (EPTL 4-1.1). A child who died before the parent is usually represented by their own children. Half-blood relatives count the same as whole-blood. The actual shares depend on the family.
Diallo J. Stevens, Licensed Real Estate Broker, in full-time practice since 2002 and handling estate sales since 2004. A New York State Part 36 fiduciary eligible for court appointments, and a New York State Approved Real Estate Instructor.
I sell estate property in Queens, Brooklyn, Manhattan and the Bronx, both Nassau and Suffolk Counties, and Westchester.
Consider me a resource to help you with your matters, including ones where a listing isn’t likely: values, condition, occupancy and what the market will actually bear. I’m also happy to help families get oriented before they’ve retained counsel, and send them your way. More for attorneys
Before the cash offer, before the cleanout, before anyone signs anything. 929-400-7653
Five minutes, and it answers most of the first call.
Death and real estate — what actually happens
Recorded on camera, not written down and edited by me.
Estate clientTwo-family in the Bronx
Not automatically. New York gives administrators the same power to sell real estate that it gives executors (EPTL 11-1.1), unless the court’s decree or the letters limit it. Letters are sometimes issued with a restriction, and the title company sets its own requirements to insure the buyer. We’ll look at what yours allow together.
New York’s small estate procedure covers personal property, like bank accounts, a car and belongings, not real estate. That doesn’t always mean full Letters of Administration are the only road, either. Depending on the family and the title, there may be other options. It’s worth a call to me early, before anyone files anything.
Usually, nothing good. While it sits, taxes, insurance, a mortgage or a reverse mortgage keep running, and a lender may eventually move to foreclose. There are often ways forward that the family hasn’t considered, but they get fewer the longer it waits. Call me.
Call me early, because an occupant changes the timeline. I’ll help document the situation and plan the sale around it. Depending on the facts, the occupant may be addressed in the sale or may need to be removed first.
The law sets the shares. Heirs who want a different result need to do it properly, through renunciations or agreements, rather than a handshake at the closing table. Call me and I’ll help you sort out how.
Usually not. Many of my estate sellers live out of state. Signing can often be handled remotely, and I go to the property so you don’t have to.
No. Sometimes it’s worth it and sometimes it’s money burned, and we’ll evaluate both paths. Either way, I have contacts and resources for cleanouts, repairs and maintenance, and I’ll shepherd you through everything.
Not without hiring me first. Investors tend to be sophisticated purchasers, and once you sign a contract, the leverage dynamic shifts dramatically. It’s not just a question of the price offered. It’s about making sure you actually get what you agreed to, whether it was the right thing to agree to, and how to keep from being held hostage and leveraged into closing a worse deal.
When the last borrower dies, the loan generally becomes due, and the lender’s clock starts. Heirs typically get a limited window to sell or pay it off, and extensions aren’t automatic. Waiting is usually the most expensive option, so call me as early as you can.
I’m a Licensed Real Estate Broker and a New York State Approved Real Estate Instructor, not your attorney. Here are links to the relevant laws and government resources.
Where it is, who the family is, and whether anyone has filed anything yet. I’ll tell you how I’d approach it, and I’d like to handle the sale for you.
Would you rather just talk? Call 929-400-7653.
