Title issues
Estate in the chain of title
When a deceased owner sits in the chain, title turns on the estate papers. What the search needs, how the gap is cured, and who pays for the delay.
What is needed to close when an estate is in the chain of title?
Quick Answer
Chain of title · Moves the closing date while it is worked
How is it found?
- The search shows the last recorded deed in the name of a person who has died
- A deed out of the estate was recorded by an executor whose authority is not in the record
- The property was held as tenants in common, so a deceased co-owner’s share passed to an estate rather than to the survivor
- A surrogate’s court file exists but the letters have expired or were limited in a way that does not permit a sale
- No probate was ever started, and the family has been paying the taxes on a property titled in a decedent’s name
How is it cured?
- Establish how the property was held, because a tenancy by the entirety or a joint tenancy passes by operation of law and needs only a death certificate
- Where an estate is required, obtain letters testamentary or letters of administration and confirm they are current and unrestricted
- Confirm the will actually empowers the fiduciary to sell, or obtain the consents or the court authority the sale needs
- Clear the estate tax picture with the releases or waivers a purchaser and lender will require before funding
- Where no proceeding was ever brought, start one; a sale cannot outrun the appointment of a fiduciary
- Where distributees are numerous or unlocated, expect the search for them to set the schedule and plan the closing date around it
What does clearing it cost?
The cost is a surrogate’s court proceeding and the professional time to run it, plus the filing costs the court sets by the size of the estate. A clean probate with a cooperative family is routine. A contested will, an unlocated distributee or a decades-old unadministered estate is where the cost and the calendar both expand.
Who pays for it?
The estate, out of the sale proceeds, because the estate is the seller. Buyers rarely contribute, but they routinely carry the cost of the delay: a rate lock that expires or a rental that has to be extended while the fiduciary gets appointed.
Can an executor sell before the will is probated?
Not on their own. Authority to convey comes from the letters the surrogate’s court issues, not from the will itself or from the family’s agreement. A contract can be signed while the proceeding is pending, but the deed needs a fiduciary who has actually been appointed and whose letters are current at closing.
What if the property was held as tenants by the entirety?
Then it never entered an estate. A tenancy by the entirety and a joint tenancy with right of survivorship both pass to the survivor by operation of law, so the cure is documentary: a certified death certificate and, where the recording officer requires it, an affidavit confirming the survivor’s identity. That is a days-long fix, not a proceeding.
Why do estate files draw extra title exceptions?
Because the risks are ones the record cannot resolve on its own: an unknown will, an unlocated distributee, a creditor claim inside the statutory period, an unpaid estate tax. Each of those becomes a Schedule B exception unless the estate produces the paper that closes it, which is what curative work on an estate file consists of.
What else should you read before closing?
In the glossary
- Chain of titleThe sequence of recorded conveyances of a property, from an earlier known owner to the present one. Gaps and defective links in the chain are what ...
- Affidavit of titleA sworn seller statement given at closing affirming no undisclosed liens, judgments or claims against the property. It supports the coverage writte...
- Tenancy by the entiretyJoint ownership by spouses with a right of survivorship, where neither can transfer or mortgage the property without the other. It is the default f...
- Tenancy in commonCo-ownership in undivided shares with no right of survivorship. Each share can be sold, mortgaged or left by will independently of the other owners.
- Curative workThe clearance steps taken between commitment and closing to remove title requirements: releases, satisfactions, corrective deeds, estate paperwork ...
- Schedule BThe requirements and exceptions section of a title commitment. Requirements are cleared before closing; exceptions remain uninsured unless removed ...
- Marketable titleTitle a reasonable buyer would accept, free of defects that would expose that buyer to litigation. Most New York contracts require the seller to co...
Questions this raises
- What is curative title work?Curative work clears Schedule B-I before closing: payoffs, missing satisfactions, heirship affidavits, ACRIS indexing fixes and escrow holdbacks in...
- What happens if the title search finds a problem before closing?Schedule B-I requirements are the punch list, not a dead deal. How New York closings clear old liens, missing satisfactions and name hits before th...
- How long does a title search take?Three to five business days for a clean NYC house or condo, longer for co-ops, estates and multi-parcel files. What slows a New York title search d...
Title issues
- Unsatisfied mortgage of recordA paid-off mortgage with no recorded satisfaction still reads as a live lien in ACRIS. Here is how it is found, how it is cleared, and who pays for...
- Name variance and identity discrepancyThe deed in reads one name and the deed out reads another. How a New York title search treats a name variance, how it clears, and what it costs to ...
- Forged or fraudulent deed in the chainA forged deed conveys nothing, so every later transfer rests on it. How deed fraud surfaces in a NYC search, how the chain is repaired, and who pays.
- Missing or defective deed acknowledgmentNew York only records a conveyance that is properly acknowledged. What a defective notary certificate does to the chain, how it is cured, and who p...
The statute itself
Have a closing coming up?
Tell us about the transaction. An attorney reads every intake form and responds the same business day.
Legal Disclaimer: This page is general information about New York practice. It is not legal advice, it does not account for the terms of any particular contract, building or transaction, and reading it does not create an attorney-client relationship. This is attorney advertising. Prior results do not guarantee similar outcomes.