A Common Story in Surrogate’s Court
A few years ago, I met with three siblings from Queens. Their parents had passed away within months of each other, leaving behind the family home they had lived in for forty years. They had no will. The siblings—two of whom wanted to sell immediately, one of whom lived in the house and wanted to stay—were suddenly co-owners of a valuable but emotionally charged asset. Their relationship, once close, was now strained by weekly arguments over expenses, buyout offers, and the basic question of what to do next. Their inheritance had become a burden.
This is a story I’ve seen play out in different ways across New York. The family home is often the most significant asset parents leave behind, but it’s rarely just an asset. It’s a place of memory and identity. When parents don’t create a deliberate plan for the house, they are unintentionally leaving that difficult stewardship to their children, who may not be equipped—or inclined—to manage it together.
The State’s Plan: When There Is No Will
If you die in New York without a will—a situation known as dying “intestate”—the state has a plan for you. New York’s Estates, Powers and Trusts Law (EPTL) dictates who gets your property. Under EPTL § 4-1.1, if you have no surviving spouse, your assets pass directly to your children in equal shares. On paper, this sounds fair. If there are three children, each inherits a one-third interest in the house.
The problem is that a fractional interest in a house is not a liquid asset. You cannot pay bills with one-third of a living room. This arrangement effectively turns siblings into business partners. Every decision requires consensus: Who pays the property taxes? Who covers the insurance and utilities? What if the roof starts leaking? What if one sibling wants to sell and the other two want to hold onto the property for sentimental reasons or to rent it out?
When consensus is impossible, any co-owner has the legal right to file a “partition action” in court. This forces the sale of the property so the proceeds can be divided. It is an expensive, often bitter, legal process that can permanently damage family relationships. The court resolves the financial dispute, but it cannot mend the personal fallout. This is the state’s default plan—an orderly but impersonal process that prioritizes division over family harmony.
An Intentional Plan: The Will and the Trust
A well-drafted estate plan replaces the state’s default rules with your own. It provides clarity and direction, turning the transfer of your home from a potential crisis into a managed process. The two primary tools for this are a will and a trust.
Using a Will
A will is your formal set of instructions. In it, you can name an executor—a person you trust—to manage your estate. You can direct the executor to sell the house and divide the cash proceeds, which is often the cleanest way to handle the situation. Or, you could give one child the right of first refusal to buy the house from the estate at fair market value, giving them a chance to keep it in the family while being fair to their siblings.
The will must go through probate in Surrogate’s Court, a process that validates the will and gives the executor the authority to act. While probate is a necessary court proceeding, it provides a structured and supervised forum for carrying out your wishes regarding the property.
Using a Revocable Living Trust
For many families, a trust is an even better instrument for managing real estate. When you place your home into a revocable living trust, you retitle the deed in the name of the trust. You still control the property as the trustee during your lifetime, but upon your death, a successor trustee you’ve chosen steps in.
This person—often a trusted child, friend, or professional fiduciary—has the immediate authority to manage or sell the house according to the specific instructions you left in the trust document. There is no need for probate, which saves considerable time and expense. The entire process is private. You can be highly specific in your instructions: perhaps the house is to be maintained for a year to give the family time to sort through belongings, or maybe it must be sold immediately to fund inheritances for your grandchildren. Stewardship.
Your Home, Your Legacy
The transfer of a family home is a critical moment in a family’s generational story. Without a plan, you leave the outcome to a generic state statute and the hope that your children will agree on every point. That’s a significant risk to both your financial legacy and your family’s relationships.
Creating a plan is an act of stewardship. It’s about foreseeing the potential for conflict and creating a clear, legally sound path to prevent it. Whether through a will that directs an orderly sale or a trust that provides nuanced instructions, you can ensure the value of your home is passed on as a blessing, not a battleground.
If you own a home and are unsure what would happen to it, a good first step is to review the deed and any existing estate planning documents you have. If the path forward isn’t clear, we schedule a 30-minute Real Property Legacy Review at our firm to map out the consequences of your current plan and discuss more intentional alternatives.
