A family from Brooklyn recently came to my office. Their mother had passed away, leaving behind the brownstone she’d owned for 40 years. They assumed the house was theirs, but a quick search revealed the deed was solely in her name. She had a will, but that document could not effect an immediate transfer. Her home—and their inheritance—was now subject to the timeline and authority of the Kings County Surrogate’s Court.
The fate of a family home is rarely a mystery. It is a direct result of the planning that was—or was not—done years before.
When a Will Is Just a Map to Court
Many people believe a will transfers property automatically upon death. It does not. A will is a set of instructions for the Surrogate’s Court. The process of validating that will and appointing an executor is called probate. For that Brooklyn family, this means months—sometimes more than a year—of court filings, notifying heirs, and paying costs before they can retitle the home.
The entire probate process is public record. All filings, including the will and the inventory of assets, can be viewed by anyone. The estate must also bear the costs, which include court filing fees, the executor’s commission, and legal fees. These expenses are paid from the estate’s assets before any beneficiary receives an inheritance.
If a homeowner dies without a will—known as dying “intestate”—the situation is even more rigid. New York law, specifically Estates, Powers and Trusts Law (EPTL) § 4-1.1, dictates who inherits the property. The court appoints an administrator to follow this state-mandated formula: spouse, then children, then parents, and so on. The state’s plan may not align with the homeowner’s wishes, but the court has no discretion to deviate from the statute.
The Deed—Not the Will—Has the Final Say
The single most important document determining a home’s path after death is not the will—it’s the deed. The way a property is titled can allow it to pass to a new owner immediately, without court intervention. A significant part of my practice is helping clients structure deeds to reflect their true intentions.
In New York, two forms of ownership are particularly effective at avoiding probate for real estate:
- Tenancy by the Entirety: This form of ownership is reserved exclusively for married couples. When one spouse dies, the property automatically belongs to the surviving spouse. The transfer happens by operation of law, outside the will or the probate court.
- Joint Tenants with Rights of Survivorship (JTWROS): Unmarried individuals can own property this way. As with tenancy by the entirety, when one owner dies, their share automatically passes to the surviving joint owner or owners.
This is distinct from a third type of co-ownership: Tenants in Common. Under this arrangement, each owner holds a separate share. When one owner dies, their share does not automatically go to the other owners. Instead, it becomes part of their estate and is controlled by their will, forcing it through probate. I once worked with a client who owned a lake house with his brother as tenants in common. When his brother passed away, he was shocked to learn he now co-owned the property with his brother’s estranged son. This was a messy, unintended consequence that proper titling would have prevented.
Stewardship: Placing Your Home in a Trust
For many families, the most prudent way to manage real estate is to place it into a living trust. This is the foundation of generational stewardship. When you transfer your home’s title to a trust, you are no longer the individual owner—the trust is. You appoint yourself as the trustee during your lifetime, retaining full control over the property.
Upon your death, a successor trustee you previously named steps into your shoes. Their job is to manage or distribute the property according to the private instructions you left in the trust agreement. They have a fiduciary duty to follow your wishes precisely.
The result? No probate. The public, time-consuming, and costly process governed by Surrogate’s Court Procedure Act (SCPA) Article 14 is avoided completely. The transfer of control is private, efficient, and shields your family from the delays and scrutiny of court proceedings. Placing a home in a trust is not just about avoiding a legal process. It is about creating a clear, uncontestable plan for your most significant asset—an act of profound care for the people you leave behind.
The path your home takes after your death is not preordained. It is a direct consequence of legal structures put in place while you are alive. The difference between a private, seamless transition and a nine-month court proceeding is a matter of foresight and intentional planning.
If you own property in New York and are uncertain about what would happen to it, the first step is to understand how it is currently titled. I invite you to schedule a consultation with our firm where we can perform a deed review and discuss a plan that aligns with your family’s legacy.
