Selling a house in probate

What probate is, in plain terms

Probate is the court process for settling a person's estate after they die. It confirms who has authority to act for the estate, makes sure debts and taxes are handled, and transfers property to the people who are supposed to receive it. In New York, probate and estate administration are handled by the Surrogate's Court in the county where the person lived. For homeowners in Lindenhurst and the rest of the Town of Babylon, that's the Suffolk County Surrogate's Court.

If a house was owned only by the person who died, and it wasn't held in a trust or owned jointly with someone who survives them, it usually becomes part of the probate estate. That means it generally can't be sold until someone has been given legal authority by the court.

We're not attorneys, and every estate is different. The estate's attorney is the right person to guide you through the specifics. This page explains the general process and how a sale fits into it.

Probate vs. administration

People often use "probate" to describe the whole process, but in New York there are technically two paths:

Probate, when there's a will

If the person left a valid will, the executor named in it files the will with the Surrogate's Court and asks the court to admit it to probate. If the court approves, it generally issues letters testamentary to the executor. Those letters are the document that shows banks, title companies, and buyers that the executor has authority to act for the estate.

Administration, when there's no will

If there's no will, the estate goes through administration. A family member, usually a close relative, petitions the court to be appointed administrator. If appointed, they receive letters of administration. New York law sets the order of priority for who can serve, and also determines who inherits when there's no will.

Either way, the person holding the letters is usually the one who signs the contract and the deed when the house is sold.

Small estates

New York has a simplified process for small estates, sometimes called voluntary administration. However, it's generally designed for personal property below a certain value, and real estate is typically not handled through it. If the estate includes a house, expect the full probate or administration process. The estate attorney can confirm.

How long probate takes

There's no single answer. A simple, uncontested probate might move relatively quickly. An estate with missing heirs, family disagreements, unclear paperwork, or creditor issues can take much longer. Court backlogs also affect timing.

The good news for a sale is that you don't have to wait for the entire estate to be wrapped up. Generally, once the executor or administrator has letters, they can move forward with selling the house, subject to anything the will or the court requires.

Can you sell before the letters are issued?

You can start the process. You can have us walk through the house, get a written offer, and discuss terms with the family. In some cases, the estate attorney may even have a contract signed that's contingent on the letters being issued. But closing generally has to wait until someone has legal authority to convey the property.

We're comfortable waiting. Many of our purchases involve estates still working through the court process.

Do you need court approval to sell the house?

It depends. Many wills give the executor broad power to sell real estate without separate court approval. Administrators, and executors under certain wills, may face more restrictions. If the will is silent or limited, or if there are minor or incapacitated heirs, the court may need to approve the sale. Your estate attorney will know what applies.

Who has to agree to the sale

In general, the executor or administrator has the authority to sell, not each individual heir. However, keeping the heirs informed and in agreement makes the process much smoother, and in some cases their consent may be needed or advisable. When heirs disagree, things can slow down considerably.

A written cash offer can help by giving everyone the same number, with the reasoning behind it. That takes some of the guesswork out of family conversations.

Paying the estate's bills while the house sits

During probate, the estate is responsible for the house's expenses:

• Property taxes
• Homeowner's insurance, which may need to be adjusted for a vacant house
• Utilities, especially heat in the winter
• Lawn care, snow removal, and basic upkeep
• Mortgage payments, if there's still a mortgage

These costs come out of the estate, which means they reduce what the heirs ultimately receive. Selling sooner, rather than later, can protect the estate's value, especially for a house that needs work and would otherwise sit through a long renovation and listing process.

What if there's still a mortgage?

A mortgage doesn't disappear when the borrower dies. The estate is responsible for it, and it's paid off from the sale proceeds at closing. Federal rules generally protect certain heirs from having the loan accelerated just because of the transfer, but missed payments can still lead to problems. Contact the mortgage servicer early, let them know about the death, and ask what they need from the estate.

If the house has a reverse mortgage, the rules are different. See our reverse mortgage page.

Creditors and the estate

Before heirs receive their shares, the estate generally needs to address valid debts and expenses. The executor or administrator handles that with guidance from the estate attorney. The proceeds from selling the house often play a role. This is another reason the estate attorney should be involved in the sale from the start.

Taxes

Inherited property often receives a stepped-up basis for federal capital gains purposes, which can reduce capital gains tax when the estate or heirs sell. New York has its own estate tax for estates above a certain threshold. The estate may also need to file final income tax returns for the person who died. Work with an accountant who handles estates.

The house's contents

Probate houses are often full. Decades of furniture, clothing, papers, and personal items. Before anything is removed, the executor or administrator should be careful, because some items may have value or be specifically left to someone in the will. Make sure important documents are collected.

Once the family has taken what it wants and the estate attorney is comfortable, you can leave the rest. When you sell to us, the cleanout is our job.

How we work with executors and administrators

1. The executor, administrator, or the estate attorney contacts us.
2. We arrange one visit to the house.
3. We send a written offer to the estate, and to the heirs if the family wants that.
4. The estate attorney reviews the contract.
5. We wait for the letters or any required approvals.
6. We close, and the proceeds go to the estate for distribution.

Avoiding probate in the future

If you're dealing with a probate house now, you may be thinking about your own estate plan. Tools like revocable trusts, joint ownership, and in some cases transfer on death deeds can simplify how real estate passes. New York's rules on these tools have specifics worth discussing with an estate planning attorney.

You don't have to do this alone

Being an executor or administrator is a real responsibility, and it often falls on someone who's also grieving. Lean on the estate attorney. Ask questions. And if the house is one thing you'd like taken off your list, we can help with that part.

Probate checklist for the house

• Secure the house: change locks if needed and make sure doors and windows close
• Call the insurance company and confirm coverage for a vacant or unoccupied property
• Keep the heat on or have the plumbing winterized
• Forward the mail so bills and tax notices aren't missed
• Find the deed, survey, tax bills, and any permits
• Collect important papers and valuables before anyone else enters
• Contact the mortgage servicer, if there's a mortgage
• Get a written offer so the estate knows its options

Selling when an heir lives in the house

It's common for a family member to be living in the house when the owner passes away, sometimes as a caregiver. That situation needs care and good communication. The executor or administrator generally has the authority and responsibility to manage estate property, but the family member may have strong feelings, or may have expected to stay. The estate attorney can advise on how to handle it respectfully and lawfully. We can buy the house with someone still living there and set a closing date that gives them time to move.

Out-of-state executors

Executors and administrators don't have to live in New York, although the court may have specific requirements in some cases. If you're managing an estate from another state, you can handle most of the sale remotely. We can coordinate access, do the walkthrough, and send you photos and a written offer. Your estate attorney can manage the paperwork, and documents can often be signed with a notary near you.

Disputes among heirs

When heirs disagree about the house, probate can slow down considerably. If disagreements can't be resolved, the court may become involved. A clear written offer and an honest explanation of the estate's carrying costs sometimes help families reach agreement. If not, the estate attorney can explain the options.

Selling as-is helps estates

Executors have a duty to act prudently. Spending estate money on repairs can be risky if the work doesn't increase the sale price enough, and it can cause friction with heirs. An as-is sale avoids that risk and gives the estate a clear, documented price.

Insurance during probate

Tell the insurer the owner has passed and the house may be vacant. Coverage often changes for unoccupied homes.

How the sale works

Questions