When a parent dies leaving behind a beloved family home in Brooklyn, the children often assume they can simply take ownership. They are surprised to learn the deed is still in their parent’s name, and they have no legal authority to sell the property, refinance the mortgage, or even change the utility bills. The house is frozen, and the path forward leads directly to the local Surrogate’s Court. This is New York’s default process for property transfer. It is rarely the most efficient.
For decades, I have seen families grapple with this reality. The transfer of real estate after a death is not an automatic event; it is a legal procedure. How that procedure unfolds—whether it is a public, court-supervised process or a private, administrative one—is determined by choices made years, sometimes decades, earlier.
The Default: Transfer Through Probate
If a person dies owning real estate in their name alone, their Last Will and Testament must be submitted to the Surrogate’s Court in the county where they resided. This begins the probate process. The court must first validate the will and officially appoint the person named as Executor.
Only after the court issues “Letters Testamentary” does the Executor have the legal authority to act on behalf of the estate. This power includes signing a new deed to transfer the property to beneficiaries or selling it to distribute the proceeds. Until that court order is in hand, nothing can happen. The heirs wait.
Probate is public record. Petitions, wills, and inventories of assets become accessible to anyone. The process can be time-consuming and expensive. It is a necessary judicial function, but it is not designed for speed or privacy. It is the path you end up on by default, not by deliberate design.
A More Intentional Path: The Revocable Living Trust
A more prudent path exists. Title the property not in your name, but in the name of a revocable living trust you create and control. You are the trustee during your lifetime, so you retain full authority to manage, mortgage, or sell the property just as you always have. Nothing changes about your day-to-day ownership.
The critical difference occurs upon your death. Because the trust—not you—owns the property, it is not part of your probate estate. The person you named as your successor trustee immediately steps into their role with the authority to manage the trust assets. They transfer the deed to your beneficiaries according to your instructions, without court approval.
This is a private, administrative process. It bypasses the delays and public scrutiny of Surrogate’s Court. It places the stewardship of your legacy directly into the hands of the person you selected, governed by the rules you established. It is an act of deliberate, generational planning.
Other Forms of Ownership
Trusts are not the only way to hold property. Many married couples in New York own their homes as “tenants by the entirety,” a form of joint ownership with an automatic right of survivorship. When one spouse dies, the other automatically becomes the sole owner. Similarly, “joint tenants with rights of survivorship” achieves the same result for unmarried co-owners.
While these methods avoid probate for the first death, they are blunt instruments. They do not provide for any contingency if both owners pass away in a common accident. They also give the surviving owner absolute control, which may not align with the original owner’s wishes for their children from a prior marriage, for example.
A more recent option is the Transfer on Death Deed (TODD). Under New York’s Real Property Law §240-c, effective in 2021, property owners can now name a beneficiary who will inherit the property automatically upon their death, avoiding probate. While this can be a useful tool in simple situations, it lacks the flexibility of a trust, which can hold the property for a minor, manage it for a beneficiary with special needs, or protect it from a beneficiary’s creditors.
How you hold title to your property is one of the most significant decisions in your estate plan. It dictates the future of what is often a family’s most valuable asset.
The first step toward making an intentional choice is understanding your current situation. We often begin by simply reviewing a client’s existing property deeds. If you are unsure how your property would be transferred, I invite you to schedule a review of your deeds and titling documents with our firm.
