I recently sat with a couple in their Brooklyn home—a brownstone they’d owned for 40 years. They had raised their children there, celebrated milestones, and weathered city blackouts. Now, their question was simple: “How do we make sure this house stays in the family, for our children, without causing a mess when we’re gone?”
Their concern is one I hear almost every week. For many New York families, a home isn’t just an asset on a balance sheet; it’s the heart of a legacy. The most common tool we discuss for this specific goal is a trust. But placing your home into a trust is a deliberate act of stewardship that requires understanding exactly what you’re trying to accomplish.
The Will vs. The Trust: A Question of Probate
Many people assume a last will and testament is sufficient to pass on a home. It is—but it does so through a public, court-supervised process called probate. When you leave your house to your children in a will, the will gets filed with the Surrogate’s Court in the county where you resided. Your executor must then manage the estate under the court’s watch, a process that can take many months, sometimes longer.
Every filing, every asset, every debt becomes part of the public record. For families who value privacy, this is often a major drawback.
A trust, on the other hand, is a private agreement. When you transfer your home into a trust, the trust owns the property, not you personally. You appoint a trustee—often yourself, initially—to manage the property for the benefit of your beneficiaries. Upon your death, a successor trustee you’ve named steps in to manage or distribute the property according to your instructions. No court proceeding is required for this transition. The transfer happens privately, efficiently, and on the timeline you set forth in the trust document.
The goal isn’t to avoid legal process, but to choose a more direct and private one.
Revocable vs. Irrevocable: Control is the Core Difference
When clients consider a trust for their home, the next conversation is always about the type of trust. The distinction comes down to a single question: do you want to retain the power to change your mind?
A revocable living trust is the most common choice for families whose primary goal is to avoid probate. It’s flexible. While you are alive and have capacity, you remain in full control. You can act as the trustee, live in the home, sell it, or refinance it. You can even undo the trust entirely. The ability to change your mind is codified in New York law—specifically, Estates, Powers and Trusts Law (EPTL) § 7-1.9 governs how the creator of a trust can amend or revoke it, provided the trust instrument itself reserves that right.
An irrevocable trust is different. It is a permanent decision. Once you transfer your home into an irrevocable trust, you cannot simply take it back. You give up a significant degree of control. Why would anyone do this? Typically, for reasons beyond probate avoidance, such as long-term care planning (Medicaid) or shielding the asset from potential future creditors. Because you no longer own or control the asset, it is generally not counted for Medicaid eligibility purposes after a five-year look-back period. This is a significant planning tool, but it comes at the cost of flexibility.
Choosing between them is a serious conversation. We have to weigh the desire for future control against the need for immediate asset protection.
The Mechanics of the Transfer
Creating the trust document is only the first step. A trust without assets is just a pile of paper with good intentions. To make it work for your home, the property must be formally retitled in the name of the trust. This process is called “funding the trust.”
This involves preparing and recording a new deed with the county clerk. The new deed will show the owner not as you, the individual, but as you, the trustee of your trust (e.g., “Jane Smith, as Trustee of the Jane Smith Revocable Trust”). We manage the deed transfer for our clients. You must also notify your homeowner’s insurance carrier of the change in title to ensure your coverage continues uninterrupted.
If you have a mortgage, this doesn’t prevent you from transferring the property to a revocable trust. Federal law—the Garn-St. Germain Depository Institutions Act of 1982—prevents lenders from calling the loan due when a homeowner transfers their property into a living trust for estate planning purposes.
Making this transfer is an intentional act. It’s the legal step that turns the plan into a reality. The structure you build will then function as intended when your family needs it most.
A house is more than its market value. It’s a place of memory and a foundation for the next generation. Deciding how to pass it on is one of the most significant legacy decisions you will make. The first step is to get clear on your primary objective. Are you planning for incapacity, avoiding the public nature of probate, or protecting the asset from long-term care costs? We often schedule an initial call just to help families frame that core question, as it guides every decision that follows.
