I once worked with a family whose parents had done everything right—or so they thought. They had a trust designed to pass their Brooklyn brownstone to their three children in equal shares. Years later, when they refinanced their mortgage, the bank’s attorney prepared a new deed. He titled the property in the parents’ names as “joint tenants with rights of survivorship,” a standard practice for a simple transaction. No one thought to retitle it back into the trust.
When the last parent passed away, the trust was clear. But the deed—a more powerful document for controlling real property—was clearer. It sent the entire brownstone, the family’s largest asset, into the probate process, directly contradicting the parents’ intentions and adding nearly a year of delay and expense in Surrogate’s Court.
This happens far more often than people realize. A home is the cornerstone of most family wealth, yet the simple document that controls its ownership is often the most overlooked part of an estate plan.
How a Deed Can Override Your Will
We work with a hierarchy of documents in estate planning. For many assets, like bank accounts, a beneficiary designation form will override whatever your will says. For real estate, the deed is king. How your property is titled dictates exactly what happens to it when you die, regardless of the instructions in your will or even a revocable trust.
In New York, there are three primary ways for multiple people to own real estate:
- Tenants in Common: Each owner holds a separate, divisible interest in the property. If you own a home as a tenant in common and you pass away, your share goes to your estate and is distributed according to your will. It is subject to probate.
- Joint Tenants with Rights of Survivorship (JTWROS): When one owner dies, their share automatically passes to the surviving joint owner(s). This transfer happens by operation of law—instantly and outside of the probate process. Your will has no say in the matter.
- Tenancy by the Entirety: This is a special form of ownership available only to married couples. It functions like JTWROS, providing an automatic right of survivorship to the surviving spouse. Under New York’s Estates, Powers and Trusts Law § 6-2.2(b), any transfer of real property to a married couple creates a tenancy by the entirety, unless the deed expressly states otherwise.
While automatic survivorship sounds efficient, it can become a trap. If your estate plan is designed to fund a trust for your surviving spouse or to provide for children from a previous marriage, a JTWROS deed can dismantle that entire structure with one sentence.
The Deed as an Instrument of Stewardship
The most deliberate way to ensure your home is managed according to your wishes is to title it in the name of a trust. When we transfer a client’s home into their revocable living trust, the owner of record is no longer the individual—it’s the trust itself, managed by the trustee.
Why do we do this? It’s not about legal maneuvering. It’s about stewardship.
First, it ensures the property completely avoids probate. There is no need for Surrogate’s Court to get involved because the trust, as an entity, doesn’t die. The successor trustee you named simply steps in to manage the property according to the trust’s instructions.
Second, it provides for incapacity. If you become unable to manage your affairs, your successor trustee can manage the property for your benefit—paying the mortgage, handling repairs, or even selling it if necessary—without needing a court-appointed conservator.
Finally, it provides generational control. The trust can hold the home for the benefit of your children, protecting it from their potential creditors, divorces, or financial mismanagement. A simple deed transfer can never accomplish this.
The Mistake of “DIY” Deed Transfers
I often see clients who, in an attempt to avoid probate, have added a child’s name to their deed. This is one of the most damaging mistakes in estate planning. By doing this, you are not just planning for the future—you are giving away a portion of your property today. This can trigger gift tax consequences. Worse, it exposes your home to your child’s financial life. If they get into a car accident, face a lawsuit, or go through a divorce, your home is now an asset their creditors can pursue.
New York is also one of the few states that does not permit the use of Transfer on Death (TOD) deeds for real estate. These deeds, popular in other states, allow an owner to name a beneficiary who will inherit the property directly upon death. You cannot use this tool for property in New York; a trust remains the most effective vehicle for this purpose.
Is Your Deed Working With—or Against—Your Plan?
The deed to your home is a live document with immediate legal power. It is not just a historical record of a purchase filed away in a drawer. It can be the linchpin that holds your estate plan together or the loose thread that causes it to unravel.
An estate plan isn’t a single document, but a system of interlocking parts designed to work in concert. The way your property is titled must be in perfect alignment with the goals of your will and trust. If you have an estate plan but haven’t reviewed your deed since you created it, there may be a serious disconnect.
If you created a trust and have since refinanced your mortgage, the next prudent step is to get a copy of the current deed from your county clerk’s office. We can then perform a title review to confirm the property was correctly transferred back into your trust and that its ownership structure supports—rather than subverts—your family’s legacy.
