A family I met with last month from Brooklyn owns a brownstone that’s been in their name since the 1970s. Their children are grown, and their primary concern is ensuring the house passes to them without the delay and expense of court proceedings. They’ve heard a trust is the answer, but they’re worried. Does putting their home into a trust mean they lose control? Can they still sell it one day? They are asking the right questions.
Your home is often your most significant asset, but it’s more than that—it’s the center of your family’s story. The decision to place it into a trust is an act of stewardship. It’s a deliberate choice about how you want that part of your legacy managed for the next generation. You can put your residential property into a trust in New York. The more important question is which kind of trust is appropriate for your family’s goals.
The Central Question: Control vs. Protection
When clients ask me about putting their home in a trust, the conversation comes down to one core trade-off: control versus protection. Two primary vehicles exist for this, and they serve very different purposes.
First is the revocable living trust. This is the most common instrument we use for a primary residence. A revocable trust can be changed, amended, or dissolved entirely during your lifetime. When you transfer your home into a revocable trust, you typically name yourself as the trustee. You retain complete control. You can sell the house, refinance the mortgage, or take the property back out of the trust. Your day-to-day life does not change.
The main purpose of this arrangement is to avoid probate. Upon your death, the successor trustee you named can transfer the home to your beneficiaries according to the trust’s terms, bypassing the Surrogate’s Court. Its purpose is efficiency and privacy—not asset protection. The assets in a revocable trust are still considered yours for tax purposes and by potential creditors.
Second is the irrevocable trust. This is a permanent arrangement. Once you transfer your home into an irrevocable trust, you generally cannot undo it. You give up control. You cannot be the sole trustee, and you lose the unilateral right to sell the property or change the beneficiaries. Why would anyone do this? For a significant level of asset protection. An irrevocable trust can be structured to shield the property from future creditors or to help qualify for long-term care benefits like Medicaid after the five-year look-back period has passed.
This is a powerful tool for preserving a legacy, but it comes at the cost of flexibility. Stewardship.
The Mechanics of Transferring Your Property
Placing your home into a trust requires more than signing a document. The trust is an empty vessel until you fund it. For real estate, this requires a formal transfer of title.
We prepare a new deed that conveys the property from you, as an individual, to yourself, as the trustee of your trust. This new deed is then recorded with the county clerk where the property is located. This public filing makes the transfer official. In New York, the legal requirements are strict—under General Obligations Law § 5-703, any conveyance of real property must be in a signed writing. An oral agreement is not enough. The deed is the essential instrument.
There are practical considerations as well:
- Mortgage: If you have a mortgage, we must review the loan documents. Most contain a “due-on-sale” clause, which could be triggered by a transfer to a trust. However, the federal Garn-St. Germain Depository Institutions Act of 1982 prevents lenders from calling the loan due when a homeowner transfers property into a revocable living trust in which they are the beneficiary. We still notify the lender as a matter of good practice.
- Title Insurance: Your existing title insurance policy protects your ownership. When you transfer the property to a trust, we must ensure the policy’s protection extends to the trust as the new owner. This often requires an endorsement to the existing policy.
- Homeowner’s Insurance: Your homeowner’s insurance policy must also be updated. The trust should be named as an “additional insured” to ensure coverage remains in force. This is a simple, overlooked step with significant consequences.
These are not obstacles, but critical details. A proper transfer requires a deliberate, methodical approach to ensure the protections you seek are actually in place.
The choice to place your home in a trust is a foundational part of your estate plan. Whether a revocable trust for probate avoidance or an irrevocable trust for asset protection is the right path depends entirely on your family’s circumstances and your vision for the future. The conversation is about much more than just a house.
The first step is to review your current deed and discuss your family’s long-term goals. To understand how these principles apply to your property, schedule a meeting with my office to determine if a property trust aligns with your legacy plan.
