I often sit with couples in our Manhattan office who have spent a lifetime building a life in their home—a Brooklyn brownstone, a house on Long Island. They’ve raised children there, hosted holidays, and now see it as the cornerstone of the legacy they’ll leave behind. They’ve heard that putting the house in a trust is a smart move, but they’re hesitant. Their main fear is a loss of control. “If the trust owns my house,” they ask, “does that mean I don’t?”
It’s the right question to ask. The answer depends entirely on the kind of trust you create and what you are trying to achieve. For most families, a trust isn’t about giving up control—it’s about exercising it in a more deliberate way, ensuring the stewardship of their most significant asset passes to the next generation without unnecessary court intervention.
Avoiding the Delays of Surrogate’s Court
When a person’s home is titled in their name alone at their death, it cannot be sold or passed to their heirs without an order from the Surrogate’s Court. This process, known as probate, subjects the family’s private affairs to public record and can be frustratingly slow. In New York, even a straightforward probate can take the better part of a year, and often longer if there are complications.
During this period, the property is in limbo. Heirs may not be able to sell it to capture a good market price, or they may have to continue paying the mortgage, taxes, and upkeep out of their own pockets while waiting for the court’s permission to act. All probate proceedings are governed by the Surrogate’s Court Procedure Act—specifically SCPA Article 14—a body of law that dictates a formal and often lengthy process. Placing the home into a trust entirely sidesteps this. The trust owns the property, and the person you name as the successor trustee can manage or distribute it according to your instructions, immediately and privately.
Revocable vs. Irrevocable Trusts: Control and Contingency
The distinction between a revocable and an irrevocable trust is the most important concept for a homeowner to understand. It’s the difference between a flexible tool for managing your affairs and a permanent plan for asset protection.
The Revocable Living Trust
For most of my clients, a revocable living trust is the appropriate instrument. It is a direct way to maintain full control while you are alive and plan for a smooth transition after you’re gone. When you place your home in a revocable trust, you typically name yourself as the trustee. You continue to live in your home just as you always have. You can mortgage it, sell it, or give it away. You can change the beneficiaries or even dissolve the trust entirely. Nothing changes—except the name on the deed.
Because you retain this control, the home is still considered your asset for tax purposes. You keep your property tax exemptions, like the STAR credit, and your heirs still receive a “step-up” in cost basis upon your death. This can save them a significant amount in capital gains taxes if they decide to sell.
The Irrevocable Trust
An irrevocable trust is a more permanent arrangement. Once you transfer your home into this type of trust, you generally cannot undo it. You must appoint someone else—a trusted child, a friend, or a professional—to act as the trustee. You give up direct control.
Why would anyone do this? The primary reason is for long-term care planning and asset protection. To qualify for Medicaid to cover nursing home costs, your assets must be below a certain threshold. By transferring your home to an irrevocable trust, you start a five-year clock. If you don’t apply for Medicaid within that five-year “look-back” period, the value of the home is generally not counted as your asset. It is a powerful tool for generational wealth preservation, but it requires a serious commitment and a deep trust in your chosen fiduciary. This is not a decision to make lightly.
The Mechanics of the Transfer
Moving your home into a trust is a straightforward legal process, but it must be done correctly. We prepare a new deed that transfers the property from you, as an individual, to you as the trustee of your trust (or to the trustee of your irrevocable trust). This new deed is then recorded with the county clerk in the borough or county where the property is located.
This is not a do-it-yourself project. An incorrectly prepared deed can create a cloud on the title, causing major problems years down the road when you or your heirs try to sell the property. It’s a matter of ensuring the legal description is precise, the transfer is exempt from transfer taxes where applicable, and all New York Real Property Law requirements are met. It’s a foundational piece of paperwork that must be flawless.
Ultimately, a house is more than an asset on a balance sheet. It’s a family’s center of gravity. Deciding how to hold title to it is a profound act of stewardship. Whether a trust is the right vehicle for your home depends on your specific goals—for your lifetime and for the generations that follow.
The first step in making this decision is a clear understanding of how your property is currently owned. If you’re unsure, we can begin with a review of your existing deed to confirm how title is held and discuss how that fits within your family’s broader legacy plan.
