Key Takeaways
- Executors may sell estate property without all beneficiaries approving.
- Executors receive authority only after appointment by the probate court.
- Executors must follow the terms of the will when selling estate property.
- Administrators may sell estate property according to state probate laws.
- Executors must act in beneficiaries’ best interests and avoid selling below market value.
An executor can sell estate property without all the beneficiaries approving. However, there are some important caveats to consider. Their power is not unrestricted.
For example, the outcome is very different if a decedent’s last will and testament states explicitly that a piece of property will go to a specific beneficiary or if the will states that the property will go to all living children and the children do not agree on whether or not to sell the property.
The executor or administrator of an estate gets their power from the will or probate laws. If the will or probate laws allow the executor to sell a property, they can move forward with the sale. Of course, they will need to act in the best interests of the beneficiaries and the estate and notify the beneficiaries of the plan to sell the property. Is an executor required to communicate with beneficiaries? In most cases, yes—keeping beneficiaries informed helps avoid disputes and ensures transparency during the probate process.
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Powers of the executor and administrator
Although the executor may be named in a decedent’s will, they do not possess the authority that comes with this position until the probate court has officially appointed them as such. The title of executor for an estate is not automatic. The proposed executor must file a probate petition in probate court, along with an original copy of the will. A NYC probate attorney can prepare and file that petition and guide the executor through the court appointment before any sale of estate property moves forward.
If a person should die without writing a will, an administrator is appointed. Since the administrator does not have knowledge of the dependent’s wishes for their estate, they will follow state laws to liquidate non-cash assets. Once the administrator liquidates the descendant’s stocks and bonds, empties their bank accounts, and sells any valuables, all resulting cash from these activities is deposited into the estate bank account. Unless there is a compelling reason not to, the administrator will sell the estate property.
If the administrator is planning to sell a property, it can be challenging to stop that sale. However, suppose one beneficiary wants to buy out the interests of the others, and they all agree. In that case, a buyout can save the heirs money, including transfer taxes, real estate broker fees, and other expenses.
An executor can sell real estate property without all beneficiaries’ approval as long as they follow the instructions in the will. An administrator can sell real estate without the beneficiaries’ consent, as long as there is no compelling reason they cannot.
When real estate is not probated
In some cases, real estate is not probated. One example is joint ownership. For example, if a decedent jointly owns their home with their spouse, the property will not be sold under probate. It will go to the joint owner.
If the decedent has a will and explicitly names a beneficiary for a particular asset, then the asset will go to that beneficiary.
If the decedent has a trust and has funded the trust with their assets, they will not go to probate. The terms of the trust will determine how the assets will be distributed to the beneficiaries.
Following state laws, if the probate assets fall below a specific value, they may be transferred to the beneficiaries without going through probate.
Conflicts of Interest
To avoid conflicts of interest and increased scrutiny by the beneficiaries and the probate court, the administrator should not enter into a contract for sale that sells a property for less than market value. Doing so can be construed as a breach of fiduciary duty.
An executor can purchase the estate’s real estate for themselves. Unless they are the named beneficiary in a will, this transaction will be looked at very carefully. The executor would want to ensure the purchase is made at fair market value and that the probate court and beneficiaries approve of the sale.
The Executor’s Fiduciary Duty When Selling Estate Property
An executor can sell a house in New York, but only after the Surrogate’s Court issues official Letters Testamentary. Simply being named in a will does not grant the legal authority to act. Under SCPA § 703, these letters serve as conclusive evidence of the executor’s authority once granted, and a certified copy remains valid proof of that authority for six months after issuance (and the letters can simply be renewed once they expire).
Once appointed, the executor takes on a fiduciary duty to the estate and its beneficiaries. EPTL § 11-1.1 grants fiduciaries broad power to sell estate property at public or private sale, but that power comes with real obligations attached. The executor must seek fair market value, avoid self-dealing, disclose material information to beneficiaries when appropriate, and administer the estate with reasonable care throughout the process. This duty extends to treating every beneficiary impartially and maintaining clear records of decisions affecting estate property. Broad authority is not the same as unchecked authority, and every decision the executor makes should reflect the best interests of the estate as a whole.
When Can Beneficiaries Challenge the Sale of Estate Property?
Beneficiary disagreement alone does not prevent an executor from moving forward with a sale. However, beneficiaries may have legitimate grounds to object when the executor acts outside the scope of their authority, sells property significantly below market value, or has a personal conflict of interest in the transaction. Raising a formal objection generally requires more than dissatisfaction with the outcome; it calls for evidence that the executor’s conduct fell short of their fiduciary obligations.
Breach of Fiduciary Duty and Below-Market Sales
A below-market sale is one of the clearest red flags in probate. When an executor accepts an offer well under fair value, particularly when the buyer is the executor themselves or someone connected to them, beneficiaries may reasonably suspect a breach of fiduciary duty. Fair market value is generally established through independent appraisal rather than the executor’s own assessment. New York courts scrutinize these transactions closely, and an executor who cannot show the sale reflected fair market value and sound judgment may face a formal challenge in Surrogate’s Court. Confirmed breaches can result in surcharge or removal.
Final Thoughts: Can an Executor Sell Property of the Estate Without All Beneficiaries Approving?
If a transaction is in the best interest of the beneficiaries and the estate and is in line with the decedent’s wishes and state law, the executor can sell a property without all beneficiaries approving. The executor has the power to choose the probate lawyer and the real estate broker. They can also determine the list price and the terms of the contract.
However, executors and administrators must ensure there is no whiff of self-dealing. Legal fees and commissions for the sale must be reasonable, and the sale price of the property should be fair market value.
Contact Katzner Law Group for help with your estate planning. We can help you clarify your wishes and goals to ensure that your estate is distributed to your beneficiaries in the manner you intended. Contact us and schedule a call with us at 855.631.3457 to learn more about how to protect those most important to you.
