A father in Queens passes away, leaving the family home to his three adult children in his will. They assume ownership is a given. But when they decide to sell the house a few months later, they discover a problem: the deed is still in their father’s name. They cannot list the property, transfer the title, or access its equity. Their father’s will was just the first step; the legal transfer of the deed requires a formal process they knew nothing about.
I see this situation frequently in my practice. A property deed is the legal instrument that proves ownership, but a will alone does not change it. The stewardship of a family’s most significant asset—their home—depends on understanding how that deed is legally conveyed from one generation to the next. The path it takes depends on the planning that was done, or not done, years before.
When a Will Controls the Property
If a property is titled solely in the decedent’s name and passed down through a will, the transfer is supervised by the New York Surrogate’s Court. This is the probate process. The will must be submitted to the court, validated, and the court must formally appoint the person nominated as the Executor.
Once the court issues “Letters Testamentary,” the Executor has the legal authority to act for the estate. This includes the power to manage and distribute assets as the will directs. To transfer the property, the Executor signs an “Executor’s Deed.” This new deed moves the title from the decedent’s name to the name of the designated heir. Only then does the beneficiary have legal ownership and the ability to sell, refinance, or otherwise control the property.
This process is effective, but it is neither fast nor private. Probate can take months, sometimes more than a year, and the proceedings are a matter of public record. For many families, this delay and public exposure is something they prefer to avoid.
A More Direct Path: The Revocable Trust
A more prudent approach to managing real estate involves placing the property into a revocable living trust during your lifetime. When you do this, you transfer the deed from your individual name to your name as trustee of your trust. You retain complete control over the property—you can sell it, mortgage it, or give it away—but the legal ownership rests with the trust entity.
When you pass away, there is no need for probate because you did not own the property as an individual. The person you named as the “Successor Trustee” immediately steps into your shoes with the authority to manage the trust’s assets. This includes the power to transfer the property to your beneficiaries.
The Successor Trustee signs a “Trustee’s Deed” to convey the property to the rightful heirs, according to the instructions in the trust document. This transfer happens privately and without court intervention. The authority for a trustee to make such a conveyance is established in New York law; the Estates, Powers and Trusts Law (EPTL) Article 11 grants fiduciaries broad powers to sell and transfer estate property.
What About Joint Ownership?
Many married couples own their homes as “Joint Tenants with Rights of Survivorship” (JTWROS). In this arrangement, when one spouse dies, the property automatically passes to the surviving spouse by operation of law. The court is not involved. The surviving spouse typically needs only to record the deceased spouse’s death certificate with the county clerk to clear the title.
While simple, this method is not a substitute for an estate plan. It only addresses the transfer between the joint owners. It does nothing to plan for what happens when the surviving owner passes away. Furthermore, adding a child as a joint owner on your deed can create unintended consequences—exposing your home to their potential creditors or marital disputes and complicating your own ability to manage the property. It is a tool, but one that must be used with deliberate intention.
Understanding how your property is titled is the first step in ensuring your legacy is passed on as you wish. A deed is more than a piece of paper; it represents a family’s history and its future. Making sure its transfer is seamless is a core part of responsible stewardship.
If you are the custodian of your family’s property, your first action should be to locate and review the current deed. Our firm is prepared to analyze the title and discuss whether your ownership structure aligns with your long-term goals for your family.
