The short answer is yes — you can sell a house during probate in New York. But there are legal requirements you must satisfy first. Selling estate property without proper authority can void the transaction and expose you to personal liability. Here is what executors and administrators need to know.
You Need Letters Before You Can Sell
Before you can list, negotiate, or close on estate property, you must have Letters from the Surrogate's Court. These come in two forms:
- Letters Testamentary — issued to the Executor named in a will (through probate)
- Letters of Administration — issued to an Administrator when there is no will (through administration)
Without Letters, you have no legal authority to sign a contract of sale or execute a deed. No title company will insure the transaction, and no buyer's attorney will allow a closing to proceed.
Restricted vs. Unrestricted Letters
This is where many families hit a wall. Letters of Administration are frequently issued with a restriction on real property. This means the court has specifically limited the administrator's authority — they cannot sell, mortgage, or transfer real estate until the restriction is lifted.
Why Does the Court Restrict Letters?
The court restricts Letters to protect the estate and its beneficiaries. Common reasons include:
- The estate tax situation has not been resolved
- Not all distributees have consented or been served
- A sufficient bond has not been posted
- The court wants to review the proposed sale terms
How to Remove the Restriction
You must file a Petition to Remove Restrictions on Letters with the Surrogate's Court. This petition should include proof that estate taxes are addressed, consent from all interested parties, and — if a sale is pending — an Affirmation of Urgency explaining the time-sensitive nature of the transaction.
Court Approval for the Sale
If the will grants the executor a power of sale, the executor can generally sell property without additional court approval. Most well-drafted wills include this power.
If the will does not grant a power of sale, or if you are an administrator (no will), you may need to file a petition for authority to sell real property under SCPA Article 19. The court will review the proposed sale to ensure it is in the best interest of the estate.
The ET-117 Timeline
The ET-117 (Release of Estate Tax Lien) is a document from the New York State Tax Department confirming that all estate taxes have been paid or that none are due. Title companies require this document before they will insure the transfer of estate real property.
The problem: the ET-117 takes 3 to 6 months to process. This is one of the most common causes of delayed closings in estate property sales. To minimize delays:
- File the ET-85 (New York Estate Tax Return) as early as possible
- If the estate is below the filing threshold, submit an ET-85 with a zero balance to get the lien release started
- Consider requesting an expedited review if a closing date is imminent
Practical Tips for Selling During Probate
- Start the probate process immediately — do not wait until you find a buyer
- Maintain the property — keep insurance active, pay the mortgage, and handle basic upkeep
- Disclose the estate sale — buyers and their attorneys will need to verify your authority
- Work with professionals — estate property sales involve more complexity than standard transactions
For the complete step-by-step process, see our Selling Estate Property Guide.