Selling a House in Probate

You’re the executor (or administrator, or the named beneficiary still figuring out who’s the executor). The will is at the attorney’s office or in a drawer, the petition is filed or about to be filed, and the house is sitting empty in Hicksville, or Levittown, or Smithtown, accruing taxes and insurance premiums while the Surrogate’s Court works through its docket.

Probate is a process the law has thought hard about, and a process most families experience exactly once. This guide is the Long Island answer to “how do I actually sell this house while the estate is still open.” Real Surrogate’s Court timing for Nassau and Suffolk, what the executor can and can’t do at each stage, the citation and Letters mechanics, and how a sale fits inside the probate window without waiting for the estate to close.

A companion piece on this site, Selling an Inherited House, looks at the same territory from the heir’s perspective. This one looks at it from the executor’s: what the legal authority is, what the documents are, what the timeline is, and what trips most Long Island estate sales up.

What is probate in New York?

Probate is the court-supervised process of authenticating a will, appointing an executor, paying the decedent’s debts, and distributing the remaining assets. In New York, it happens in Surrogate’s Court, which is county-level. Decedents domiciled in Nassau County go to the Nassau County Surrogate’s Court in Mineola. Decedents domiciled in Suffolk go to Suffolk County Surrogate’s Court in Riverhead. The court’s job is to make sure the will is real, the executor is qualified, and creditors and beneficiaries are treated correctly.

If the decedent didn’t leave a will, the equivalent process is called “administration” rather than “probate,” and the document issued is “Letters of Administration” rather than “Letters Testamentary.” Same effect, slightly different paperwork. Distribution follows EPTL §4-1.1 (intestate succession) instead of the will.

When probate is required for a Long Island house

Three things have to be true for the house to need probate.

1. The decedent owned it. Sole ownership in the decedent’s name puts the property in the estate.
2. No survivorship interest. If the deed reads “John Smith and Mary Smith, as joint tenants with right of survivorship,” and Mary survived John, the house passed to Mary on John’s death by operation of law. No probate needed for the transfer. Same with “tenants by the entirety” (which applies only to married couples). Without survivorship language, the default interpretation in NY is “tenants in common,” and the decedent’s share does need probate.
3. No revocable trust holding title. If the house was titled to a living trust, the trustee follows the trust instructions. The will is irrelevant to the house. No Surrogate’s Court involvement.

What about transfer-on-death deeds? New York does not recognize them for real property. If you read about TOD deeds on a generic estate-planning blog, that’s a different state. A NY-domiciled house with a TOD deed from another jurisdiction does not transfer on death by that document alone.

What about Article 13 voluntary administration (the “small estate” affidavit process)? That covers personal property only, up to a $50,000 limit. Real property is expressly excluded. A house in the estate puts you in regular probate or administration regardless of how small the financial assets are.

So: the typical Long Island probate situation is an elderly homeowner, sole owner, will leaves the house and other assets to two or three adult children. The house is in the estate. Probate is required. Until the executor has Letters Testamentary, no contract on the house can close.

The Surrogate’s Court timeline

Walking through the typical Long Island probate, focused on when the house can actually be sold.

Weeks 1 to 4: Pre-petition

• The named executor finds the original will (the original, not a copy, NY courts are strict about this, lost-will admissions require a separate proceeding under SCPA §1407).
• Death certificates ordered from the funeral home (get 6 to 10 certified copies, multiple agencies and institutions will need them).
• An estate attorney is engaged. Most Long Island Surrogate’s Court probates are handled by attorneys who do this regularly, the procedural details are unforgiving and pro se probate is rare.
• The decedent’s bank accounts, retirement accounts, life insurance, deeds, and tax returns are inventoried.

Weeks 4 to 8: Petition filed

• The estate attorney files a probate petition in the Surrogate’s Court of the decedent’s county of domicile, with the original will, the death certificate, the proposed executor’s information, and the list of distributees (the legal heirs who would inherit if the will were thrown out, typically all the children, sometimes more depending on family structure).
• Filing fees scale with estate size, currently capping at $1,250 for estates over $500,000 in NY.
• The court issues a Citation, which is the formal notice to all distributees that the will is being submitted for probate. They have 30 days to object.

Weeks 8 to 16: Citation period

• Citations are served on each distributee, usually by mail with proof of mailing.
• The 30-day clock runs from the return date specified on the citation.
• If anyone objects, the case becomes a contested probate and the timeline opens up substantially. SCPA 1404 examinations, depositions of attesting witnesses, possibly a trial. Some Long Island contested probates have run 3 to 5 years.
• If nobody objects, the will is admitted to probate.

Weeks 16 to 20: Letters issued

• Letters Testamentary are issued to the executor. This is the moment the executor has authority to sign a sales contract, sign a deed, and convey title.
• The executor takes oath, posts bond if required (the will may waive bond, most modern wills do, intestate administrations almost always require bond).
• The estate attorney sends certified copies of the Letters to banks, insurance companies, the IRS, the NY Department of Taxation and Finance, and, when needed, the title company for the house sale.

Weeks 20 to 36: Estate administration

• Inventory of assets filed.
• Notice to creditors.
• Estate tax returns prepared and filed if the estate exceeds the federal exclusion ($13.99 million in 2025, scheduled to drop to roughly $7 million in 2026 absent congressional action) or the NY exclusion ($7.16 million in 2026, with NY’s “cliff” structure).
• Debts paid in priority order under SCPA §1811.
• House is sold during this window, in many cases. Proceeds wire into the estate account.
• Final accounting prepared.

Weeks 36 to 52: Discharge

• The executor petitions for judicial settlement of the account, or proceeds by informal settlement under SCPA §2202.
• Distributions are made to beneficiaries.
• The executor is discharged.

The compressed version: the house can be sold any time after Letters issue (around week 16 to 20 for an uncontested file), and the sale typically happens in the weeks 20 to 36 administration window. Closings before Letters issue are not impossible, you can sign a contract contingent on Letters, but title cannot pass until Letters are in hand.

What the executor’s job actually is, regarding the house

The executor’s fiduciary duty is to the estate, not to any specific heir. That’s the rule that decides most of the gray-area questions.

Maintain the property

Once the executor has Letters, the house is the executor’s responsibility. That means:

• Keep the homeowner’s insurance in force (vacant-house policies if the house is unoccupied, force-placed coverage if the original policy lapses)
• Keep utilities on at minimum service levels to prevent freeze damage in winter and humidity damage in summer
• Pay property taxes (Nassau, Suffolk, and any village taxes) when due
• Keep the lawn mowed in season, snow shoveled in winter, basic security maintained
• Avoid waste (allowing the house to deteriorate beyond ordinary wear) and self-dealing (using estate assets for personal benefit)

These costs come out of the estate. If the estate has cash, fine. If the estate is house-rich and cash-poor (the typical Long Island estate), the executor is often advancing personal money to keep the house intact, which is why the pressure to sell builds.

Get a fair price

The executor has to act in the estate’s interest, which generally means getting a reasonable price for the house. That does not mean getting the absolute top dollar, the Surrogate’s Court has long recognized that retail listings come with carrying costs, and the appropriate price is the one a reasonable executor would accept under the circumstances.

Documenting the process matters more than chasing the highest possible number:

• Get a comparable-sales analysis from a real estate agent or a written cash offer with comp set
• Document the offers received and the basis for accepting one over another
• Keep records of the carrying costs avoided by closing earlier rather than later

A cash offer at 80 to 85% of as-is retail value, accepted because it closes in 30 days versus a retail listing that would carry the house for 4 to 6 months, is a defensible decision under the prudent-investor rule.

Account to the beneficiaries

The executor has to keep an accurate accounting and present it at the close of the estate. Sale proceeds are documented (closing statement, deed, payoff letters), expenses are documented (broker fees if used, attorney’s fees, transfer taxes, repairs if any), and the net to the estate is clear.

Some executors send a quarterly informal accounting to beneficiaries to head off later disputes. On contentious estates, this is worth the small additional effort.

Common Long Island probate-sale complications

A few patterns we see often.

The contested will

When one or more distributees has filed an objection to probate, Letters cannot issue until the contest is resolved. The executor cannot sell the house in the meantime, the property sits, accruing carrying costs. Some attorneys file for “preliminary letters” under SCPA §1412, which give limited authority to administer the estate during a contested probate. Preliminary Letters do not always include real-property sale authority, that’s an order to obtain separately.

The missing distributee

If one of the children moved out of state in 1987 and nobody knows where they are now, citations cannot be served on them and the probate stalls. Estate attorneys have procedures for this (publication, court-supervised search, eventual citation by publication if all reasonable efforts fail), but it adds 4 to 8 months in the typical Long Island case.

The will without power of sale

Older Long Island wills, particularly from the 1970s and 1980s, sometimes don’t include explicit language authorizing the executor to sell real property. In those cases, the executor needs court permission under SCPA §1902 to sell. The petition is straightforward, the court usually grants it, but it adds 30 to 60 days.

The house with deferred maintenance

The decedent was 87 years old, had lived in the Levittown cape since 1972, and kept up with the basics but not with anything systemic. The roof is 28 years old. The boiler is original. The basement has water issues that nobody fixed because nobody was finishing the basement. The kitchen is 1985. Retail-listing this house requires either deep price discounts or substantial renovation, neither of which is comfortable for an executor balancing estate-asset preservation against beneficiary expectations. Cash sale is generally the better fit.

Multiple co-executors

When the will names two or three children as co-executors, every estate decision requires consensus. If the co-executors don’t agree on the sale price, the timing, or the buyer, the file stalls. New York allows co-executors to act severally (one acting binds all) only when the will explicitly authorizes it, otherwise consensus is required. Document everything in writing, take the cash offer in writing, get co-executor signatures on contracts at the time of execution.

The reverse mortgage

A growing share of Long Island probates involve reverse mortgages (Home Equity Conversion Mortgages, HECMs). When the borrower dies, the reverse mortgage becomes due, typically within 6 months of death, with possible extensions to 12 months on application. The estate has to either pay off the reverse mortgage or sell the house and pay it off from the proceeds. Reverse-mortgage probates tend to move faster than typical estates because the lender’s clock pushes them.

How NY Cash Sale handles probate-window sales

We are a Long Island cash buyer, principal not agent. Estate sales are one of the most common categories in our pipeline, and our acquisitions team works directly with executors’ attorneys at Nassau and Suffolk Surrogate’s Court.

The way it actually goes:

1. The executor (or the executor’s attorney) submits the address, or calls us. Within about 5 minutes, our team calls back.
2. The first conversation is roughly 10 minutes. We confirm where the property is, what stage of probate the estate is in (pre-petition, citation period, Letters issued, post-administration), what condition the house is in, what’s still in it, and what timeline preference the executor has.
3. If we’re a fit, we schedule a walkthrough. We can also buy sight unseen, which is common when the heirs are out of state, the contents are sensitive, or the executor would rather not show the house.
4. Within 24 hours of the walkthrough we send a written cash offer with our comp set. The executor has the math to share with co-executors, beneficiaries, and the estate’s attorney.
5. If the offer is accepted, we sign a contract with a 10% non-refundable deposit. That deposit signals real commitment, we are not the buyer who wholesales the contract and disappears two weeks before closing.
6. Closing happens once Letters are in hand and title is clear. We can sign the contract during the citation period and close on the day Letters issue, which is the fastest probate-window timeline that’s actually feasible. Or we can schedule a longer close to align with estate-administration timing.

We pay all closing costs on our side. The estate’s attorney handles the closing, the wire goes to the estate’s account, the estate distributes per the will or intestate succession after creditors and taxes are resolved.

If the estate’s situation looks complicated (contested will, missing distributees, multiple co-executors who don’t agree, junior liens or judgments), the call is still worth ten minutes. The complications we’ve solved before are often the ones that look intimidating from the outside, and the answer to “should we sell now or wait” usually clarifies in a single conversation.