How to Probate Real Estate Frequently Asked Questions

There are 4 general steps in probate.

• File petition. The process of probate begins with the filing of the will with the New York Surrogate's Court. The executor named in the will typically completes this step. The executor also must file a probate petition with the court. The court will then admit the will (assuming that there are no obvious questions related to validity), and issue the executor Letters Testamentary giving him (or her) the legal authority to administer the estate.
• Inventory estate assets. The Letters Testamentary gives the executor the authority to take control of estate assets including real estate. This means that the executor has the power to manage the real estate including buying, selling, and colleting rents.
• Pay creditors. The executor must pay all of the estate bills using estate assets, including continuing to pay bills related to maintaining the real estate such as mortgage, property taxes, and utility bills. If the bills exceed the cash that is available to pay them, the executor may have to liquidate assets, including real estate.
• Distribute assets. As a New York probate administration lawyer will explain, the final major step in probate is the distribution of assets to the beneficiaries named in the will. This involves the executor transferring legal ownership and title to estate property.

When considering how to probate real estate, the executor must confirm that the real estate is part of the probate estate. If the decedent solely owned the property, then it is part of the probate estate. If the decedent co-owned the property with another person as a tenant in common, then only the decedent's interest in the property would be part of the probate estate. However, if the decedent co-owned the property with another person as a joint tenant, then the property would not be part of the probate estate. The executor would not have the authority to manage such property as the decedent's ownership interest would have transferred to the other joint owner by operation of law. If you are unsure as to whether or not a real estate is part of a probate estate, discuss your concerns with a probate administration attorney in New York.

The executor must also look to the will to see if there are any special instructions regarding real estate. Oftentimes a decedent instructs that the executor sell the real estate and give the proceeds to certain beneficiaries. This is often the case when a parent leaves the family home to his or her children. Instead of the children having to figure out how to split the house, the parent makes it easy by instructing that the house must be sold.

If a non-owner is living in the house that is part of the probate estate, the executor can ask that person to leave, or if necessary, evict the person.