How to Force a Sale of a House Frequently Asked Questions

During probate the executor of an estate has the legal authority over managing assets of an estate, including the authority to sell property. However, there are limitations to that power. The executor’s decisions related to property in an estate must take into account the terms of the will, the wishes of the beneficiaries, and what is in the best interest of the estate. If the decedent stated in his (or her) will that the house should be sold and the proceeds giving to specific beneficiaries, then the executor must do so regardless of the whether there are beneficiaries who want to keep the house. Similarly, if all beneficiaries want to sell the property, then the executor may do so. There may be other situations in which the executor decides that he must sell estate property, including real estate to satisfy debts. The executor will only do so if it is in the best interests of the estate to do so.

Even though the executor may have the authority to sell a house, it may be quicker and less complicated if the property is sold after probate when it has been turned over to the beneficiaries. To learn more about the authority that an executor has to sell probate real estate, contact a New York probate administration attorney.

A house that has co-owners can be held as tenants in common or as joint tenants. Tenant in common co-ownership means that each co-owner has an undivided, transferable, individual interest in the property. This means that each co-owner has the right to sell his interest in the property. On the other hand, with joint tenancy, each co-owner has an interest in the property, but there is a right of survivorship. When one joint tenant passes away the surviving joint tenants automatically receive the deceased’s joint tenant share.

If a decedent’s house was owned by the deceased in joint tenancy with others, than the house is not part of the probate estate. The executor would not have control over it. The other joint tenants would receive title and have the right to sell it if they choose.

As a probate administration attorney in New York will explain, when considering how to force a sale of a house where one or more co-owners want to sell it, but the others do not, an action to partition is a legal way to go about forcing the sale of the house.

The co-owner wishing to sell would have to petition the court for partition. Because courts are loathe to force individuals to keep property that they do not want, partition petitions are typically granted. Before forcing a sale the court will determine if there is a way to physically partition the property so that each co-owner has a separate, divided interest in the house. For example, if the house has two separate apartments with two entrances, the court may order that the ownership interest in the house be divided such that one person owns the downstairs apartment, while the other person owns the upstairs apartment. However, this type of partition is often not feasible as it is difficult to divide a house in a manner that makes sense such that both parties receive a fair interest in the house. As a result, the court is likely to order a sale of the house with the proceeds being distributed to the co-owners.