When someone dies owning real estate in New York, the property generally passes to the beneficiaries named in the will or, if there is no will, to the heirs entitled to inherit under state law. However, probate or estate administration may still be needed to establish authority, address estate obligations, and complete a sale or other transfer involving the property.
How the transfer is handled depends on the will, how the property was titled, the estate’s debts, and what the beneficiaries plan to do with the property.
Does Real Estate Have to Go Through Probate in New York?
Not always. The first step is determining how the deceased person owned the property.
Property held jointly with rights of survivorship generally passes to the surviving owner without probate. Real estate held in a trust can also pass according to the terms of the trust rather than through a probate proceeding.
When property was owned solely by the deceased person, New York law generally provides that title passes at death to the person who inherits it. If there is a will, that may be a beneficiary named to receive the property. If there is no will, the property generally passes to the decedent’s distributees under New York intestacy law.
That does not necessarily mean there is nothing left to do. Probate or estate administration may still affect how the property is managed, sold, or transferred.
How Is Real Estate Transferred During a New York Probate?
If there is a will, it is typically filed with the Surrogate’s Court in the county where the deceased person lived. Once the will is admitted to probate, the court can issue Letters Testamentary giving the executor authority to administer the estate.
From there, the executor should determine how the will treats the real estate and whether the estate has debts or expenses that could affect it. The process may include:
- Confirming ownership and reviewing the existing deed
- Determining who is entitled to the property
- Obtaining an appraisal or other valuation when appropriate
- Addressing mortgages, liens, taxes, and estate expenses
- Preparing and recording documents needed to complete a transfer or sale
If the property will be sold, the executor must also determine whether the sale falls within the authority granted by the will and New York law.
Can an Executor Sell Real Estate in New York?
In many cases, yes. New York law gives estate fiduciaries broad authority to sell real property that has not been specifically devised to a beneficiary.
Different rules can apply when a will specifically leaves a particular property to someone. In that situation, the executor may need approval from the Surrogate’s Court before selling it. Court authorization may be available when a sale is needed to pay estate debts or administration expenses or for another legally permitted estate purpose.
This distinction is important. An executor should not assume that receiving Letters Testamentary automatically provides unrestricted authority to sell every piece of real estate in the estate.
What Happens If the Beneficiaries Want to Keep the Property?
A sale is not always necessary. A beneficiary may want to keep a family home, rental property, or other real estate rather than convert it to cash.
The estate’s financial position matters. If sufficient assets are available to pay debts and expenses, retaining the property may be possible. When multiple people inherit the property, they will also need to decide how ownership will be handled. One beneficiary might buy out another’s interest, or the beneficiaries may choose to own the property together.
Before completing a transfer, we can help determine what documents are required and whether unresolved estate obligations could affect the property.
What Can Delay the Transfer of Estate Real Estate?
Real estate can add another layer to estate administration, particularly when beneficiaries disagree or the estate lacks enough cash to cover its obligations.
Common sources of delay include disputes over whether to sell the property, title problems, outstanding liens, questions about the executor’s authority, or disagreements about the property’s value. Problems can also arise when someone is living in the property and does not want to leave.
Addressing these issues early can reduce the chance that a property dispute holds up the rest of the estate.
Get Help With Real Estate in a New York Estate
Transferring real estate after a death requires more than changing the name on a deed. The executor and beneficiaries need to understand who owns the property, what authority the fiduciary has, and whether estate debts or other claims must be resolved before a transfer or sale can be completed.
Hedlind Law, PLLC helps executors and families on Long Island handle probate and estate administration, including issues involving real property. Contact us to schedule a consultation and get clear guidance on the next steps for transferring, retaining, or selling estate real estate.