Buying or Selling a House in Probate in New York: What the Title Company Will Need

When the owner of a New York home has died, the title company will not insure a sale until it knows three things. Who can legally sign the deed? Has New York estate tax been cleared from the property? And what did the owner still owe against it?

In practice, that means:

Current letters from the Surrogate’s Court, the court that handles estates (or proof of who the heirs are, if no one has been appointed)
A New York State release of the estate tax lien, on Form ET-117
A certified death certificate
Payoffs or releases for the owner’s mortgage, judgments and other liens

These rules apply across New York State. The estate is handled by the Surrogate’s Court in the county where the owner lived at death (state law on which court). That may not be the county where the house is. The estate tax release is the step that most often delays an estate closing, so it helps to start it as soon as there is a contract.

Who can sign the deed

An executor or administrator with letters

An executor is the person named in a will the court has accepted (probated). The court gives the executor letters testamentary. An administrator is appointed when there is no will, or no executor able to serve, and gets letters of administration. Either way, the letters are the court’s proof that this person can act for the estate.

New York law lets executors and administrators sell the estate’s real estate, privately or at auction (state law on their powers). An administrator does not need a will to have this power. Two limits matter:

The letters, a court order or the will can restrict it. The court can bar certain acts “until the further order of the court” (state law on restricted letters). So the title company reads the letters, not just confirms they exist.
A house the will leaves to a named person is excluded. For example: “my house at 12 Elm Street to my daughter.”

Without the power to sell, the Surrogate’s Court can approve a sale (state law on court-approved sales). Reasons include paying expenses, funeral costs, debts and estate taxes. Another is dividing shares among the people entitled to them. The court can also approve a power the will held back, for those same reasons.

A preliminary executor

Probate can take a while because of a will contest, missing heirs, or a busy court. The court can then issue preliminary letters testamentary (state law on preliminary letters). A preliminary executor can sell real estate unless the court or the will says otherwise.

A house the will leaves to a named person can be sold only with that person’s written consent or a court order. A preliminary executor also cannot pay out inheritances, so the sale money stays in the estate until full letters are issued.

The person the will leaves the house to

Say the will leaves a house to a named person. Then that person signs the deed after probate, or joins in or consents to the executor’s deed. Title insurers differ on which they want, so ask the title company early.

Heirs, when no one has been appointed

If the owner left no will and no one has been appointed, the heirs can sell the house themselves. New York calls them distributees, and state inheritance law decides who they are. For example, a surviving spouse and children share the estate: the spouse takes the first $50,000 plus half of the rest.

With no court decision naming the heirs, the title company relies on heirship affidavits: sworn statements listing every heir, living and dead. Requirements vary. A typical rule asks for statements from at least two disinterested people (people who inherit nothing) who knew the owner. If an heir has also died, the title company needs that heir’s death certificate and heirship affidavits too. Every heir must sign the deed.

Heir sales carry an extra risk: the owner’s creditors. The Surrogate’s Court can order real estate sold to pay the owner’s debts. A buyer or lender who took title from the heirs (or from the person the will left the house to) before that court case began is at risk only if both are true (state law protecting buyers):

Letters were granted within two years after the death, and
The court case started within 18 months after those letters were issued.

If either is not true, the buyer’s or lender’s title cannot be affected. Expect a request for a sworn statement about the owner’s debts. If the death was recent, the title company may also leave this risk out of coverage or hold back money in escrow.

The documents the title company will ask for

Document	Who provides it	What it does
Certified death certificate	Executor or heirs	Proves the death; needed for the ET-117
Certificate of letters	Estate attorney	Proves who can sign and shows any limits
Affidavit letters are in force	Executor, at closing	Confirms the letters were not revoked
Will and probate decree	Estate attorney	Shows if the house went to a named person or the power to sell is limited
Consent of the person named	That person, or court	Needed if the will leaves the house to a named person (or a court order)
Heirship affidavits	Heirs’ attorney	Name all heirs when no one is appointed; signed by two disinterested people
ET-117 with ET-30, ET-85 or ET-706	Attorney or accountant	Clears the New York estate tax lien; filed with the state Tax Department
Federal estate tax proof	Attorney or accountant	Larger estates only; deals with the federal estate tax lien
Mortgage payoff letter	Seller’s attorney	The mortgage survives death and must be paid off and cleared
Judgment and lien searches	Title company	Searches the owner and the heirs, including bankruptcy; the seller clears anything found
Affidavit of debts and residence	Executor or heirs	Sworn statement about the owner’s debts and where the owner lived

How recent the letters must be

Letters can be revoked or changed after they are granted, so title companies want a recently issued certificate. Six months is a common standard. Under it, the letters must be issued or updated within six months of closing and still in force at closing, backed by a sworn statement signed at closing. Co-op boards and managing agents often use a similar window. This is an industry rule, not a law, so confirm the exact window with the title company.

The New York estate tax release (Form ET-117)

New York estate tax is a lien, a legal claim, on the owner’s New York property (state estate tax lien law). It lasts 15 years from the date of death, unless paid sooner. It attaches at death, before anyone knows whether tax is due. That is why a release is needed however small the estate.

The state Tax Department’s release of lien guidance makes two points that surprise sellers:

A release is needed for all dates of death, unless the owner and the surviving spouse held the property as the only joint tenants.
“Whether or not a release of lien is required does not depend on the value of the property.”

The release is Form ET-117. It is filed with one of three forms:

Form	When it is used
ET-30	An executor or administrator has been appointed and fewer than nine months have passed since death
ET-706	The estate must file a New York estate tax return; any tax due must be paid
ET-85	No return is required, and either no one has been appointed or more than nine months have passed

For deaths in 2026, the New York estate tax threshold (basic exclusion amount) is $7,350,000 (Tax Department estate tax page). It decides whether the estate files a return (ET-706) or a certification (ET-85). It does not decide whether an ET-117 is needed.

What to expect:

There is no fee.
A complete application takes three to four weeks on average, plus seven to ten business days for mailing. The Tax Department says not to schedule the closing until the stamped release arrives.
The release is valid only with the state seal next to each property description.
One ET-117 covers up to two properties in the same county. Each county, and each co-op corporation and buyer, needs its own form.
The stamped release is filed where deeds are recorded: the City Register in Manhattan, Brooklyn, Queens and the Bronx; the county clerk on Staten Island and in Westchester.
No release is issued while any bill on the estate is unpaid.

Some title insurers also ask for an estate tax affidavit at closing. It adds to the ET-117; it does not replace it, unless the title company confirms otherwise in writing.

Federal estate tax

Federal estate tax is a lien on the estate for 10 years from death (federal lien law). For 2026 the federal threshold is $15,000,000, set by a July 2025 federal tax law (IRS). Most estates owe nothing.

Near or above that level, expect a request for proof the federal tax is paid or provided for. For smaller estates, title companies and co-op boards commonly accept a sworn statement or list of assets. It shows the estate is below the threshold. That is their decision, so ask early.

The owner’s mortgage, judgments and other debts

Death does not cancel a mortgage. It is paid from the sale money, and the release (satisfaction) must be recorded. If an old mortgage was paid but never cleared from the records, see clearing an old or unsatisfied mortgage.

Court judgments against the owner before death stay as liens on New York real estate in the county where they were filed. The lien ends two years after the death or ten years after the judgment was filed, whichever is later (state law on judgments after death). After the death, the creditor needs the Surrogate’s Court’s permission to enforce the judgment against the property. Until the lien ends, the title company will require it to be paid, or secured with a bond, at closing.

The heirs are searched too. A judgment against an heir can attach to that heir’s share.

Property tax breaks can end at death. Take a veteran (or veteran’s widow) with the veteran’s exemption. After that person dies, the tax can be recalculated without it, back to the date of death, with interest. The title company will want that paid or money held back.

When the house never became part of the estate

Some homes pass straight to the surviving owner, outside the will and the estate:

Tenants by the entirety. How a married couple owns a home in New York; the law presumes it when a home is deeded to spouses (state law on spousal ownership).
Joint tenants with right of survivorship. Co-owners where the survivor takes the whole property.

No letters are needed to sell these homes. The title company asks for the certified death certificate. Some insurers suggest recording a copy with the next deed to keep the records clear.

State law removes the estate tax lien from a home the owner and surviving spouse held as tenants by the entirety (state estate tax liability law). No ET-117 is needed when the owner and surviving spouse were the only joint tenants. Joint owners who were not married are different: the survivor gets the house, but an ET-117 is required.

If you are buying from an estate

Before signing, confirm that the person signing the contract can sign the deed:

If letters have not been issued, the contract can be made conditional on them.
If the will leaves the house to a named person, that person signs the contract or a consent.
The ET-117 takes a month or more, so the closing date needs to allow for it.

For who handles each step, see who does what at a New York closing. In New York City, recorded estate documents are on ACRIS, the city’s online property records. These include releases and death certificates recorded with earlier deeds (how to read ACRIS for title).

Details for attorneys and title professionals

Limits on the power to sell. The statutory power applies only when the appointing order, a later order or the will does not limit it. Restricted letters can bar specified acts until the court orders otherwise, so read the letters for any limit on selling or transferring real estate.
Preliminary executors. The law’s wording is that a specifically devised property may be sold only “with the written consent of the specific devisee or legatee or by court order.”
One underwriter’s rules, as an example. Stewart’s New York title guidelines for agents require letters “issued or updated by Surrogate’s Court within six (6) months of closing,” in full force at closing, with an affidavit of full force signed at closing. For a house left to a named person, the will must be probated, only that person signs, the gift must name a specific property (a gift of “all my real property” does not qualify), and a copy of the will goes with the recording documents. Heirship affidavits come from at least two disinterested people. Judgment, bankruptcy and Patriot Act searches run against all heirs named in the probate petition and any remaindermen (people who inherit after an earlier interest ends) named in the will. The same guidelines cover recalculating the veteran’s exemption and list an estate tax affidavit among standard closing affidavits. Other underwriters may differ.
Spouses vs. other joint owners. The Tax Department’s exception covers only the owner and surviving spouse as the only joint tenants. State tax law separately removes the lien from a tenancy by the entirety interest held with the surviving spouse.

Official sources

Korvane Title is preparing to launch in New York. It is not licensed as a title insurance agent and does not accept title orders. Content on this site is general information, not legal advice.