I often receive phone calls from executors who assume that selling their loved one's house is going to mean months of waiting on a judge. It's one of the first questions I get after a client is appointed to handle an estate: "Do I really need the court's permission to put this house on the market?" The honest answer is: it depends entirely on four words that may or may not appear in the will.
When a person dies with a will that names an executor and includes what is called a "power of sale," that executor can list, negotiate, and close on the sale of estate real estate without ever setting foot back in Surrogate's Court, the branch of New York's court system that oversees the administration of estates. I have reviewed countless wills over the years, and this clause is often just a single sentence buried in the boilerplate, granting the executor authority to sell, mortgage, or lease real property "without court order." If that language exists, once you have your letters testamentary, the document that formally confirms your authority to act, you are free to move forward with a sale the same way any homeowner would.
The picture changes when there is no will, or when the will is silent on the executor's power to sell. In an intestate estate, the administrator generally must petition the Surrogate's Court for a decree authorizing the sale before a deed can be transferred. This is not simply a formality; the court wants to see that the price is fair, that all distributees, meaning the relatives entitled to inherit, have been notified, and that the sale is genuinely in the estate's best interest. That is why I advise administrators early in the process to gather appraisals and broker input before filing, since a well-supported petition moves far more smoothly than one filed on assumptions alone.
There is a middle path I recommend to many of my clients: if every distributee is an adult and willing to sign a waiver and consent, the court will often approve the sale without a full hearing. As we discussed in a prior article on estate administration timelines, cooperation among family members can shave months off a process that otherwise drags on. But which route is faster, a signed consent or a full-blown petition? In my experience, a united family beats a courtroom every time.
Selling estate real estate the right way protects both the executor and the beneficiaries, and getting the authority question right from the start avoids a deal falling apart at the closing table.
If your loved one left behind real estate that needs to be sold, contact us today at (347) 766-2685 for a free phone consultation.
Contributed by Dan Rose, a local business writer specializing in Estate Real Estate services in New York City.
