A few years ago, I met with three siblings who had just inherited their parents’ brownstone in Brooklyn. Their father had passed away suddenly, leaving only a will. They assumed they could sell the property and move on. Instead, they learned that the house—and their inheritance—was frozen. For the next eleven months, the property was tied up in Kings County Surrogate’s Court. They couldn’t sell it, they couldn’t rent it, and they were still on the hook for the property taxes. Their father’s will was a public document, and the court process was slow, expensive, and frustrating.
This is a story I see far too often. A will does not avoid probate; it guarantees it. For many New York families, their home is their single largest asset. How you hold title to that asset is one of the most critical decisions in planning your legacy.
The Purpose of a Trust: Private Transfer, Not Public Probate
When you own your home in your name, its transfer after your death is supervised by a court. This is the probate process. A trust offers a different path. Think of a trust not as a complicated legal document, but as a private entity—a container—that you create to hold your assets. You transfer the deed of your house from your individual name to the name of the trust, with you as the trustee.
You still control the property. You can live in it, sell it, or refinance it. The only thing that changes is the name on the deed. When you pass away, the person you named as your successor trustee simply takes over, distributing the property to your beneficiaries according to the private instructions in the trust document. There is no court proceeding, no public record, and no lengthy delay.
This isn’t a loophole. It’s a deliberate, long-established method of managing property. The privacy alone is a significant factor for many of my clients. A will, once filed for probate, becomes a public record. Anyone can go to the courthouse and see who inherited your assets and how much they received. A trust keeps these family matters private.
Revocable vs. Irrevocable: The Trade-Off Between Control and Protection
The most common question I get is about the type of trust to use. For most homeowners, the choice comes down to a revocable living trust or an irrevocable trust. The difference is fundamental.
A revocable trust is flexible. As the name implies, you can change it or dissolve it at any time. You maintain complete control. You can sell the property, take out a mortgage, or pull the house out of the trust altogether. For the purposes of avoiding probate, a revocable trust is highly effective. New York law is clear on this point; under Estates, Powers and Trusts Law (EPTL) § 7-1.18, a transfer to a trust is not made invalid just because the person who created it retains the power to revoke it. This statute gives clients confidence that they haven’t truly “given away” their home.
An irrevocable trust is rigid. Once you transfer your home into it, you generally cannot take it back. You give up control. Why would anyone do this? The primary reasons are asset protection from creditors or long-term care planning, such as qualifying for Medicaid. By giving up control and ownership, you place the asset beyond the reach of future potential claims. This is a powerful tool, but it is not a decision to be made lightly. It requires a serious conversation about your future needs and a loss of flexibility that many people are not—and should not be—comfortable with.
Practicalities of Transferring Your Home to a Trust
Moving a deed into a trust is more than just signing a document. It requires careful execution to avoid unintended consequences.
First, if you have a mortgage, we must review the loan documents. Most modern mortgages contain a “due-on-sale” clause, but federal law—the Garn-St. Germain Act of 1982—prevents a lender from calling the loan due when you transfer your primary residence into a revocable living trust. Nonetheless, it is prudent to notify the lender.
Second, we must update your homeowner’s insurance. The named insured on the policy should be changed to the trust to ensure your liability and property coverage remains unbroken. A simple oversight here can have disastrous financial consequences.
Finally, for those owning a co-op apartment, the process is more complex. Co-op boards have their own rules about trust ownership, and many are reluctant to approve it. It often requires significant negotiation and specific trust language to satisfy the board’s requirements.
A trust is not a passive document—it is the foundation of a plan for the stewardship of your most significant assets. The decision to place your home in one must be deliberate and well-informed.
The first step is not to decide on a legal tool, but to clarify your intentions for the property and for your family. Before we ever draft a document, I have my clients consider a series of questions about their goals. If you would like to review these foundational questions to help organize your own thinking, our office can provide you with that initial worksheet.
