I often meet with families in our Manhattan office who have owned their home for generations. A common story is the Brooklyn brownstone, bought for a pittance in the 1970s, now the most significant asset the family possesses. The parents, now in their later years, are clear on one thing: they want the house to stay in the family. They are not clear on how to make that happen without burdening their children with the delays and public scrutiny of Kings County Surrogate’s Court.
Their question is almost always the same: “Should we put the house in a trust?” The answer, like most things in law, depends entirely on the family’s goals. Placing real estate into a trust is a powerful tool for stewardship, but it is a deliberate act with specific consequences.
Avoiding Probate is the Primary Driver
For most New York families, the main reason to place a home in a trust is to avoid probate. When a person dies owning real estate in their name alone, that property is frozen. It cannot be sold, refinanced, or retitled until the Surrogate’s Court officially appoints an executor through a process called probate. This involves filing the will, notifying all legal heirs, and waiting for the court to issue Letters Testamentary.
This process is not quick. It can take months, sometimes more than a year, especially if there are complications. During this time, the home still needs to be maintained—mortgages paid, taxes current, insurance in force—but the estate’s assets may be tied up. The entire process is a matter of public record. The will, the inventory of assets, and the names of the beneficiaries are all filed with the court.
A properly funded trust changes this entirely. When a home is titled in the name of a trust, the person who created it—the grantor—no longer owns it as an individual. The trust owns it. Upon the grantor’s death, the successor trustee they named can take control of the property almost immediately, following the private instructions laid out in the trust document. No court proceeding is required to transfer authority. This continuity is essential for the prudent management of a valuable asset.
The Critical Difference: Revocable vs. Irrevocable
The conversation about trusts often stalls on a fear of losing control. This is where the distinction between a revocable and an irrevocable trust becomes critical. For the vast majority of my clients, a revocable living trust is the appropriate instrument for holding their primary residence.
With a revocable trust, you as the grantor retain complete control. You can be your own trustee. You can sell the home, refinance the mortgage, or even dissolve the trust and take the property back into your own name at any time. The trust is simply a holding vehicle that becomes operative upon your incapacity or death. It offers no protection from your own creditors during your lifetime, but it accomplishes the primary goal: avoiding probate.
An irrevocable trust is a different matter. When you transfer your home to an irrevocable trust, you are making a gift to the trust. You give up control. You cannot simply change your mind and take the property back. Why would anyone do this? The primary reasons are advanced asset protection and long-term care planning. By relinquishing control, you can shield the asset from future creditors or start the five-year look-back period for Medicaid eligibility. This is a more complex strategy, and it is not a decision to be made lightly.
The Mechanics of the Transfer
Putting your house in a trust requires more than signing the trust document. The trust must be “funded” with the asset. This requires our firm to prepare and file a new deed with the county clerk, transferring ownership from you, the individual, to you as the trustee of your trust.
This is a formal legal process. In New York, for example, Real Property Law (RPL) §240-c requires specific notices and disclosures to be included with any deed conveying residential property. We handle these details to ensure the chain of title is clean and the transfer is legally sound. We also work to ensure that the transfer does not disrupt your property tax exemptions, such as the STAR credit, or violate any “due-on-sale” clause in your mortgage.
Stewardship is about intentional planning. Deciding whether to place your home in a trust is a foundational part of that process. It is a decision that weighs the desire for privacy and efficiency against the formal requirements of the transfer itself. For many New York homeowners, it is the most effective way to ensure their most valuable asset becomes a source of stability for the next generation, not a source of conflict.
The first step in this analysis is to understand what your current ownership structure means for your heirs. If you would like our firm to review your existing property deed and discuss how a trust could serve your family’s legacy, I invite you to schedule a confidential consultation.
