Under Article 19 of the New York Surrogate’s Court Procedure Act, real property vests in the decedent’s heirs or legatees immediately as owners date of death. So why would someone have to go through probate to take title or sell it?

Although technically a probate or administration proceeding in the Surrogate’s Court is not needed to become the owner of real property, heirs may face issues if they want to sell the property. This is because to sell the property, the purchaser will want to make sure that seller can convey good title. The purchasers will typically run a title report.

The purchaser will also want to procure title insurance. Title insurance will protect the purchaser if another party comes along years later claiming that the house was somehow wrongfully conveyed to the purchaser. Before issuing title insurance, title companies will want to be sure that the seller is the proper person to transfer the property. Title companies will want proof that the seller is qualified to sell the property under New York law.

There are generally two options for a seller to satisfy the title company with regard to proof that they are entitled to transfer the property. The best form of proof would be an Executor’s or Administrator’s deed. Obtaining an Executor’s or Administrator’s deed would mean that you and your sister would have to file a proceeding for probate or administration of the estate in the Surrogate’s Court and be appointed to handle the estate. This can take several months depending on the county where the property owner passed away. This may not be the county where the property is located.

The second form of proof would be with an heirship affidavit. Under this method, a disinterested person, who knew your mom for over ten years would write an Affidavit to the title company stating that you and your sister are qualified to pass valid title. This poses the most risk for a title company because the Affidavit, while notarized, is not supported by a Court order determining the heirs of the decedent. Most title companies will not allow this method to be used unless the decedent died more than two years ago. The rationale is that if there were other heirs to the estate, they would have come forward to claim an interest in the property within two years.

Another important consideration is whether the decedent had a last will and testament. If so, then the question becomes whether the real property was a specific distribution or part of the residuary estate. This generally means did the decedent specifically mention the real property and how it was to be distributed? If so, then the executor has no authority over the property without a specific court order, which is granted only if needed to satisfy debts of the estate. Further, whether the executor is entitled to statutory compensation for real property depends if the property had to be sold as part of the estate.

Estates, Powers and Trusts Law 11-1.1 (b) (5) permits a fiduciary to manage and sell property that is not specifically devised – without court order. However, even such authority is limited to certain circumstances. If a dispute arises between vested owners in the real property – this likely falls outside of Surrogate’s Court as a “dispute between living parties” and a partition action has to be brought in Supreme Court.

If you find yourself inheriting a parcel of real property you should consult with an experienced estate administration attorney to determine the best procedure for transferring the real property and to review if there are any other assets of the decedent that are subject to a probate or administration proceeding in the Surrogate’s Court. If you are considering a Will or a Trust, make sure you discuss fully how real property is to pass to beneficiaries.