Real Estate in Probate:
What Every Executor
Needs to Know
You've been named executor of an estate that includes real property. You have legal obligations, time pressure, and very little margin for error. This guide is for you.
This is plain-language guidance — not legal advice. For matters specific to your estate, consult your probate attorney. For independent real estate advisory, ARH Global Advisors is here to help.
Read the Guide Talk to an AdvisorWhat Is Probate,
Exactly?
Probate is the legal process by which a deceased person's estate is administered, debts are settled, and assets are transferred to beneficiaries under court supervision. It applies whether or not the decedent left a will.
Real property — homes, apartments, investment properties, land — is typically the largest and most complex asset in any estate. Unlike a bank account, it cannot simply be transferred by paperwork. It must be managed, valued, maintained, and often sold under specific legal requirements.
As executor, you are personally responsible for protecting the estate's real property from the moment of appointment until disposition or transfer. Missteps at this stage can expose you to personal liability — even if you were acting in good faith.
"Executors are not expected to be real estate experts. They are expected to make reasonable, documented decisions — and to seek qualified guidance when they don't know the answer."
What the Executor
Is Responsible For
As executor, your real estate responsibilities generally include:
Securing and maintaining the property from the date of death — this means utilities, insurance, and physical access. An uninsured or unsecured property can become a liability within days.
Obtaining a defensible valuation for estate and tax purposes. In New York, this typically means a formal appraisal by a licensed appraiser, not a broker's estimate.
Deciding whether to sell, transfer to beneficiaries, or hold the property — and documenting the rationale for that decision. In a contested estate, this documentation is your protection.
Managing any sale process with transparency toward all beneficiaries, under the supervision of the Surrogate's Court in New York.
Distributing net proceeds (after debts, liens, and costs) in accordance with the will or applicable intestacy law.
The Probate Real Estate
Process
What typically happens from death to closing — and where things most commonly go wrong.
Immediately upon the decedent's passing, the executor should change locks, notify homeowner's insurance of the change in occupancy status, and ensure utilities remain active. Vacant properties can lose coverage under standard homeowner's policies within 30–60 days of vacancy.
⚠️ Failure to maintain insurance can void coverage retroactivelyBefore you can legally act on behalf of the estate, you need Letters Testamentary (if there is a will) or Letters of Administration (if there is no will) from the Surrogate's Court. This is your legal authority to manage estate assets, including real property. Your probate attorney handles this filing.
A licensed real estate appraisal — not a broker's price opinion — establishes the property's fair market value as of the date of death. This valuation is used for estate tax filings, beneficiary distributions, and, if the property is sold, as the benchmark for court approval.
📋 Date-of-death valuation determines tax basis for all beneficiariesWorking with your advisory team, decide whether to sell the property, transfer it to one or more beneficiaries, or hold it temporarily. Each option has different tax, timing, and beneficiary-relations implications. This decision should be documented, ideally with independent advisory input, to protect you from future challenge.
If selling, engage a licensed real estate broker. In a probate sale, the broker's duty runs to the estate and all beneficiaries — not just a single seller. Proper marketing exposure, arm's-length pricing, and transparent offers are essential to your duty of care. Some probate sales require court approval before acceptance of any offer.
⚖️ New York Surrogate's Court may require overbid procedures for certain salesUpon closing, proceeds are deposited to the estate account. After satisfying estate debts, taxes, and administrative costs, the net proceeds are distributed to beneficiaries in accordance with the will or intestate succession. All distributions should be documented and receipted.
Common Mistakes Executors
Make With Real Estate
These are the most frequent — and most costly — errors we see executors make. Awareness is the first line of defense.
Standard homeowner's policies often exclude or limit coverage for vacant properties. Executors who don't notify the insurer and obtain a vacancy policy can find themselves personally liable if something goes wrong — a fire, a slip-and-fall, a break-in.
Speed is not the executor's primary obligation — prudence is. Accepting a below-market offer without adequate exposure or documentation of the decision process can result in beneficiary challenges, surcharge claims, and personal liability for the difference.
A broker's CMA or informal estimate is not a defensible appraisal. Estate and gift tax filings, court approvals, and beneficiary disputes all require a formal licensed appraisal. Using the wrong document at the wrong stage creates costly gaps.
In New York, certain probate property sales require Surrogate's Court approval before a sale can close. Selling without it — even if the price was fair — can expose the executor to contempt, personal liability, and an unwound transaction.
Even correct decisions can be challenged if they aren't documented. The executor's job is not just to make reasonable decisions — it's to be able to demonstrate that the decision was reasonable. Written analysis, correspondence, and professional input are your paper trail.
Beneficiaries — especially grieving family members — often push for fast sales, high prices, or specific buyers. The executor's duty is to the estate and all beneficiaries equally, not to the loudest voice. Premature or pressured decisions are among the most common sources of estate litigation.
"The executor who moves fast without a record is exposed. The executor who moves thoughtfully with documented, independent advice is protected — even if the outcome is imperfect."
The Executor's Real Estate
Checklist
Use this as a working reference. Click each item as you complete it.
- Secure the property — change locks, collect keys
- Notify homeowner's insurer of vacancy / change in status
- Obtain vacancy or estate-specific insurance rider
- Confirm utilities are active (heat, electricity, water)
- Inventory personal property remaining in the home
- Identify any tenants, liens, or encumbrances on the property
- File for Letters Testamentary with Surrogate's Court
- Order a formal appraisal (date-of-death value)
- Consult with probate attorney on court approval requirements
- Obtain independent real estate advisory on disposition strategy
- Notify all beneficiaries of proposed disposition
- Document the basis for pricing and marketing decisions
- Confirm any court approval requirements before accepting offers
- Verify title is clear and any liens are addressed at closing
When Should You Call
a Real Estate Advisor?
Independent advisory is most valuable before irreversible decisions are made. These are the situations where early engagement makes the greatest difference.
- Property must be sold through court-supervised or overbid process
- Beneficiaries are in dispute over valuation or disposition
- Estate has real property in multiple states or markets
- Property has tenants, unpermitted work, or title complications
- You are under pressure to sell quickly and at a specific price
- The estate may have tax exposure tied to real estate value
- Selecting and vetting a listing broker for probate property
- Reviewing offers against current market conditions
- Deciding between sale to a third party vs. transfer to a beneficiary
- Timing a sale to optimize proceeds or tax outcomes
- Documenting your decision process for fiduciary protection
- Coordinating real estate decisions with estate attorney and CPA
Ready to Talk Through
Your Situation?
We provide confidential, no-obligation initial consultations for executors and trustees navigating real estate in probate or trust administration. There's no cost to have a conversation — and significant cost to making an uninformed decision.