FAQ: Finalizing Probate When the Will Is Outdated and Getting Authority to Sell Property in New York

Short answer: In New York you must open probate (or obtain letters of administration if there is no effective executor) through the Surrogate’s Court, secure the executor’s or administrator’s letters that prove your authority, and—if necessary—get a court order authorizing a sale of real property. Whether the old will controls depends on whether a later valid will or codicil exists and how the property is titled. This article explains the common paths, the documents you need, and practical steps to obtain authority to sell.

Disclaimer

This is educational information, not legal advice. I am not a lawyer. For help applying these ideas to your situation, consult a licensed New York attorney.

1. What does “outdated” will mean and why it matters

An “outdated” will can mean several things: the will is old and does not reflect current assets; the testator executed a later will or codicil that may supersede the old will; or the named executor is no longer able or willing to serve. In New York, the most important legal question is which will (if any) is the last valid will of the decedent. If a later valid will exists, it controls distribution. If no later will exists, the “outdated” will (if valid when signed) still governs the estate.

2. Who can administer the estate and how to get authority?

Two common paths:

• Letters testamentary: If the decedent left a valid will that names an executor who accepts, the Surrogate’s Court issues letters testamentary to that person. Those letters are the document third parties rely on to show the executor’s authority.
• Letters of administration with will annexed (administration c.t.a.): If a will exists but the named executor cannot or will not serve, an eligible heir can petition the Surrogate’s Court for letters of administration with the will annexed. That gives the administrator authority similar to an executor’s.

These procedures are governed by New York probate law. See the Surrogate’s Court Procedure Act and the Estates, Powers & Trusts Law for the statutory framework: SCPA (Surrogate’s Court Procedure Act) and EPTL (Estates, Powers & Trusts Law).

3. Do you always need a court order to sell real property?

Not always. The practical rules:

• If the property passes outside probate (for example, by joint tenancy with right of survivorship, beneficiary deed, or transfer-on-death mechanism), the executor may not need to sell it through probate at all.
• If the property is solely in the decedent’s name and you hold letters testamentary or letters of administration, most title companies and buyers will accept the fiduciary’s authority and an executor’s deed to close a sale. You must present the letters and often an affidavit that the estate is being properly administered.
• Where the sale is unusual, contested by heirs or creditors, or the will limits sales, the Surrogate’s Court may require a formal order approving the sale. In contested situations, petitioning the court for an order of sale protects the fiduciary and reduces the chance of later challenge.

4. Step-by-step: from finding the will to closing a sale

1. Locate the original will and check for later documents. Only the original signed will is generally admitted to probate. Look for codicils or a more recent will.
2. Check title and beneficiary designations. Determine whether the real property is probate property (owned solely by decedent) or passes outside probate (joint tenant, TOD, beneficiary deed, trust, etc.). If it passes outside probate, you may not need Surrogate’s Court authority to transfer title.
3. File a probate petition in Surrogate’s Court. If the will is to be admitted, file a petition to probate and ask for letters testamentary. If the named executor cannot serve, petition for letters of administration with the will annexed. The Surrogate’s Court Procedure Act has the procedures for filing and notice. See SCPA for details: https://www.nysenate.gov/legislation/laws/SCPA.
4. Obtain letters and the court’s paperwork. When the court issues letters, you will receive an official document proving your authority to act for the estate. Provide certified copies to title companies, banks, mortgage lenders, and other parties.
5. Resolve liens, mortgages, and creditor claims. Before sale you must identify outstanding mortgages, liens, and potential creditor claims. The estate’s fiduciary duty is to pay valid debts and taxes before distributing proceeds.
6. Decide whether to seek a court order approving the sale. If heirs agree and the title company accepts the letters, you may proceed without a sale order. If there is a dispute or uncertainty, petition the Surrogate’s Court for an order authorizing sale—this reduces risk of later challenge.
7. Close the sale with appropriate documents. The sale typically closes with an executor’s deed or administrator’s deed, proof of authority (letters), pay-off of liens, and settlement of estate bills. After closing, record the deed and keep detailed accounting for the estate’s final settlement.
8. Account to the court and request discharge. Once administration is complete—debts paid, taxes handled, and assets distributed—you prepare final accounting and petition the court to close the estate and discharge you as fiduciary under applicable SCPA and EPTL rules.

5. Common problems and how to handle them

• Missing original will: If you only have a copy, you can petition the Surrogate’s Court to admit a lost or destroyed will; that requires proof the will existed and was not revoked.
• Multiple wills: The court will attempt to determine which will is valid based on dates and execution formalities. Later properly executed wills typically supersede earlier wills.
• Executor refuses to serve: If the named executor declines or is incapacitated, an interested person (usually an heir) can petition for letters of administration with will annexed.
• Heirs contest the sale: A contested sale may require a court hearing and formal order. Getting a court order protects the fiduciary and the buyer.

6. Documents and information to gather now

• Original will and any codicils
• Death certificate
• Deed and property tax bill
• Mortgage statements or payoff information
• List of heirs and contact information
• Bank and investment account statements
• Insurance policies and retirement account beneficiary designations

7. Practical tips for selling probate property

• Talk to a probate or real estate attorney early. They can review whether the sale needs a court order and can prepare petitions if needed.
• Contact a title company early to learn what documents they will require to insure and close the sale.
• Get a neutral appraisal to support the sale price, especially if heirs may question value.
• Keep meticulous records of receipts and distributions; you will need them for accounting to the court and for tax purposes.
• Consider tax and mortgage consequences—seek advice from an attorney and an accountant if large gains or estate tax issues exist.

8. Where to look in New York law

Primary statutes and rules governing probate and fiduciary duties in New York include the Surrogate’s Court Procedure Act (SCPA) and the Estates, Powers & Trusts Law (EPTL). The New York Senate maintains the statutory text online:

• SCPA (Surrogate’s Court Procedure Act)
• EPTL (Estates, Powers & Trusts Law)

9. When to hire an attorney

Hire an attorney if any of the following apply: competing wills or heirship disputes; complex assets (business interests, out-of-state real property); contested sales; substantial creditor claims; concerns about fiduciary liability; or uncertainty about whether property passes outside probate. An attorney experienced in New York probate can file petitions, obtain letters, and, if needed, seek a court order to approve a sale.

Helpful Hints

• Do not try to sell probate property using a personal deed; use the estate’s fiduciary deed backed by letters.
• Check how the property is titled first—joint tenancy or beneficiary designations can avoid probate.
• Get certified copies of letters—buyers and lenders usually require certified copies.
• If heirs agree, a voluntary sale with signed consents and the letters may be fastest; if any heir objects, expect a court hearing.
• Preserve originals of all key documents (will, deed, closing papers) and provide copies in the estate file.
• When in doubt, request the Surrogate’s Court to issue guidance or an order—court approval reduces post-closing risk.

If you want, provide basic facts about the estate (is there a later will, how is the property titled, is the named executor available?) and I can outline the likely next procedural steps under New York law.