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How the process generally works in New York

1. Confirm authority to act.

   Make sure the person seeking to sell has letters testamentary or letters of administration issued by the Surrogate’s Court. Those letters give the administrator or executor authority to act for the estate. If no administrator has been appointed, petition for appointment immediately. See Surrogate’s Court resources: New York Surrogate’s Courts and the Surrogate’s Court Procedure Act (SCPA): SCPA (New York Consolidated Laws).

2. Try to resolve the refusal outside court.

   Before filing motions, attempt mediation, buyout negotiations, or a written agreement that splits sale proceeds. A practical negotiated resolution is often fastest to avoid foreclosure.

3. Contact the mortgage holder immediately.

   If foreclosure is imminent, contact the lender or its counsel to request loss-mitigation, a short stay, or a payoff statement. Lenders may accept a brief forbearance or an agreement that buys time to get court authority to sell.

4. File an urgent petition in Surrogate’s Court for authorization to sell.

   If the co-administrator will not cooperate, the acting administrator can petition the Surrogate’s Court for an order authorizing sale of estate real property, appointing a referee to conduct the sale, or permitting one administrator to execute sale documents on behalf of the estate. Surrogate’s Court has statutory and inherent authority to supervise estate administration. See SCPA: https://www.nysenate.gov/legislation/laws/SCPA.

5. Ask the court for expedited relief because of foreclosure risk.

   When foreclosure or a sale at auction is imminent, ask the court for an expedited hearing and temporary relief (for example, emergency authorization to sell or to enter a stipulation with the lender). Attach foreclosure documents and an explanation of the harm to estate beneficiaries if the sale or auction happens without court-supervised marketing.

6. Consider seeking removal or limitation of the co-administrator.

   If a co-administrator refuses to act in the estate’s best interest, you may petition to remove that co-administrator or ask the court to limit their powers. Courts remove or limit fiduciaries for neglect, refusal to perform duties, conflict of interest, or other misconduct. Cite the specific facts showing the refusal is harming the estate.

7. Coordinate with the foreclosure court if needed.

   Foreclosure actions generally proceed in Supreme Court under the Real Property Actions and Proceedings Law (RPAPL). Inform the foreclosure court and lender that the Surrogate’s Court is considering or has granted authority to sell the property. In some cases a stay or coordination between courts and parties can prevent a foreclosure sale while the estate secures authority to sell. See RPAPL: https://www.nysenate.gov/legislation/laws/RPAPL.

8. Complete the sale or other resolution.

   When the Surrogate’s Court issues an order, follow its terms (e.g., advertising, appraisal, referee sale procedures or a brokered sale) and close the transaction. The court can authorize distribution of proceeds to pay mortgage, taxes, expenses and then distribute remaining funds to beneficiaries or pay creditors. If the sale price will be less than the mortgage (short sale), negotiate with the lender for acceptance of proceeds or a deficiency waiver.

Key legal authorities and resources

• Surrogate’s Court Procedure Act (SCPA) — Surrogate’s Court supervision of estate administration: https://www.nysenate.gov/legislation/laws/SCPA.
• Estates, Powers & Trusts Law (EPTL) — statutory rules on fiduciary duties and distribution: https://www.nysenate.gov/legislation/laws/EPTL.
• Real Property Actions and Proceedings Law (RPAPL) — foreclosure procedures and timelines: https://www.nysenate.gov/legislation/laws/RPAPL and NY Courts foreclosure information: https://www.nycourts.gov/courthelp/GoingToCourt/foreclosure.shtml.
• New York Surrogate’s Courts overview and local contacts: https://www.nycourts.gov/courts/surrogate/.

Common documents you will need

• Letters testamentary or letters of administration issued by the Surrogate’s Court.
• Death certificate for the decedent.
• Mortgage payoff statement and foreclosure filings (if any).
• Title report or deed; list of beneficiaries and heirs.
• Copies of any communications showing the co-administrator’s refusal.
• Appraisal or broker price opinion for the property.

Hypothetical example

Imagine an estate owns a one-family house with a mortgage in arrears and a foreclosure notice filed in county Supreme Court. Two co-administrators hold letters of administration. One co-administrator obtains a buyer willing to pay market value, but the other refuses to sign the deed because of a family dispute. The cooperating administrator petitions Surrogate’s Court for authorization to sell and asks the court to permit that administrator alone to sign sale documents and to approve the sale process. The court holds a short hearing, finds that the sale is in the estate’s best interest, issues an order authorizing a supervised sale and directing that proceeds first pay the mortgage and foreclosure costs. The cooperating administrator closes and the lender withdraws the foreclosure or agrees to apply sale proceeds to the debt.

When to consider removal or other litigation

If a co-administrator’s refusal is unreasonable and causes financial harm, petition the Surrogate’s Court to remove or limit that fiduciary. Grounds include refusal to perform duties, conflict of interest, neglect, or other misconduct. The Court evaluates the fiduciary standard under EPTL and SCPA and may remove or replace the administrator. See EPTL: https://www.nysenate.gov/legislation/laws/EPTL and SCPA: https://www.nysenate.gov/legislation/laws/SCPA.

Helpful Hints

• Act quickly. Foreclosure timelines move fast; gather documents and contact the lender immediately.
• Keep detailed written records of communications showing attempts to cooperate and any refusals.
• Use the Surrogate’s Court’s emergency motion process if a foreclosure sale is imminent.
• Consider a short sale or lender negotiation as a temporary option to avoid a foreclosure auction.
• Get an appraisal or broker price opinion to show the court a good-faith marketing price.
• If funds are needed to defend or delay foreclosure, ask the court for authority to borrow, pay, or use estate funds to protect assets.
• Consider mediation with the co-administrator before expensive litigation. Courts often expect good-faith efforts to resolve disputes.
• Work with counsel experienced in both Surrogate’s Court practice and foreclosure defense to coordinate between courts.