NY EPTL 11-1.1(b)(5) Carves Out Specifically Devised Property

New York’s EPTL 11-1.1 is the familiar “default powers” statute: In the absence of limiting language in the governing instrument (or an order appointing the fiduciary), it lists what a fiduciary is authorized to do.

But EPTL 11-1.1(b)(5)—the real-property (and “any property or any estate therein”) power—starts with an important limitation: The fiduciary’s statutory authority to take possession, collect rents, manage, sell, lease, or mortgage does not apply “where such property or any estate therein is specifically disposed of.”

A specific devise (and more broadly, a “specific disposition”) is carved out of the fiduciary’s default powers under (b)(5). When the will (or other instrument) specifically disposes of the property, the fiduciary cannot rely on EPTL 11-1.1(b)(5) as the automatic source of authority over that property.

EPTL 11-1.1(b)(5) carves out a specific devise. It states (emphasis added):

EPTL 11-1.1 Fiduciaries' powers

. . .

(b) In the absence of contrary or limiting provisions in the court order or decree appointing a fiduciary, or in a subsequent order or decree, or in the will, deed or other instrument, every fiduciary is authorized:

. . .

(5) With respect to any property or any estate therein owned by an estate or trust, except where such property or any estate therein is specifically disposed of:

(A) To take possession of, collect the rents from and manage the same.

(B) To sell the same at public or private sale, and on such terms as in the opinion of the fiduciary will be most advantageous to those interested therein.

(C) With respect to fiduciaries other than a trustee, to lease the same for a term not exceeding three years and, in the case of a trustee, to lease the same for a term not exceeding ten years although such term extends beyond the duration of the trust and, in either of such cases, including the right to explore for and remove mineral or other natural resources, and in connection with mineral leases to enter into pooling and unitization agreements.

(D) To mortgage the same.

(E) Any power to take possession of, collect the rent from, manage, sell, lease or mortgage, granted by this subparagraph (5), which is prohibited by the terms of the will, deed or other instrument or by the provisions of this subparagraph (5), nonetheless exists, upon the approval of the surrogate, where such power is necessary for the purposes set forth in SCPA 1902.

(F) A fiduciary acting under a will may exercise all of the powers granted by this subparagraph (5) notwithstanding the effect upon such will of the birth of a child after its execution or of any election by a surviving spouse.

Practical effect:

• A specific devise (an express gift of a particular parcel) removes that parcel from the reach of the subsection’s default management/sale powers unless the will itself provides otherwise; otherwise the fiduciary cannot rely on the statute to override the testator’s specific disposition.
• That is why a blanket “direction to sell any and all real property” in a will can conflict with specific devises and requires clear drafting to show which instruction controls; if not clear, the instrument invites a construction dispute. See 🔑 NY: Directing the Executor to Sell Real Property: Sample Clause + Drafting Notes.

In short, the statutory carve‑out preserves specific devises from the statute’s default fiduciary powers. There are, however, two paths for an executor to control specifically devised property: (1) the will can authorize the executor, or (2) the Surrogate's Court can authorize the executor for purposes set forth in SCPA 1902, as mentioned in EPTL 11-1.1(b)(5)(E).