A mother in Brooklyn passes away, leaving her brownstone to her two adult children. They assume they can prepare the house for sale, but they soon discover a problem: their mother’s name was the only one on the deed. Because she held the title as a sole owner, the property is now frozen. Their inheritance is subject to the public, and often lengthy, probate process in Kings County Surrogate’s Court.
I see this situation far too often. A family’s single most valuable asset becomes a source of frustration and delay because of a few words on a document signed decades earlier. The property deed is more than just proof of ownership—it is a set of instructions for what happens when you are gone. How you hold title determines whether your home passes directly to your loved ones or becomes entangled in the courts.
Three Ways to Hold Title—And What They Mean for Your Heirs
The structure of property ownership in New York has direct consequences for your estate. Most people do not think about this when they buy a home, but the decision has generational impact. The form of ownership is not a minor detail; it is the core of the property’s transition plan.
Individuals hold title to real estate in three primary ways:
- Sole Ownership: This is the simplest form but the most problematic for an estate. Like the mother in our Brooklyn example, if your name is the only one on the deed, the property is 100% part of your probate estate. It cannot be sold, refinanced, or transferred until the Surrogate’s Court formally appoints an Executor. This process can take nine months or more, and all proceedings are a matter of public record.
- Tenants in Common: Here, two or more people each own a distinct, separate share of the property. If you own a home with your brother as tenants in common, you each own a 50% interest. When you pass away, your 50% does not automatically go to him. Instead, your share passes to your estate and is distributed according to your will. This again requires probate and can create complicated co-ownership between your original partner and your heirs.
- Joint Tenants with Right of Survivorship: This is what most people imagine when they think of co-ownership, especially for married couples. The right of survivorship is key—it means that when one owner dies, their share automatically and immediately transfers to the surviving joint owner. No probate, no court intervention. While this is a powerful tool, it can be a blunt instrument. It overrides any conflicting instructions in a will, which can disrupt a more deliberate or complex estate plan.
Using a Trust for Intentional Real Estate Stewardship
For many of my clients, the most prudent path is to remove the home from their personal name altogether. By creating a revocable living trust and transferring the property title into that trust, you establish a mechanism for control and privacy that a simple deed cannot offer.
When the trust owns the property, you—as the trustee—still have complete control. You can sell it, mortgage it, or live in it just as you did before. The difference is a matter of legal succession. Upon your passing, the property does not enter probate because you, personally, did not own it. The successor trustee you appointed in the trust document simply steps in to manage the property according to your exact instructions.
This approach is particularly important in New York. Some states have adopted a simplified “transfer on death” (TOD) deed, which allows an owner to name a beneficiary directly on the deed itself. New York, however, does not recognize this instrument for real property. There is no provision in our Real Property Law that allows for a TOD deed. A trust remains the most effective mechanism for bypassing probate and directing the transfer of real estate to the next generation.
The Practical Step: Funding the Trust
Creating a trust is only the first step. For the plan to work, the trust must be “funded”—meaning the title of your home must be formally transferred to it. This is not just a matter of paperwork; it is a legal conveyance of property.
We accomplish this by preparing a new deed, typically a Bargain and Sale Deed, that transfers the property from you as an individual to you as the trustee of your trust. This new deed must be properly executed, notarized, and then recorded with the county clerk where the property is located. For a Manhattan apartment, that means filing with the New York City Department of Finance through its ACRIS system.
An error in this process—an incorrect legal description, a faulty signature, or a failure to record—can invalidate the entire strategy. The result is that the house remains in your name, and your family ends up back in Surrogate’s Court, the very outcome you sought to avoid.
The name on your deed is one of the most powerful and overlooked elements of your estate plan. It deserves a deliberate review. The first step is to locate your current deed. If you are uncertain about its implications for your heirs, the next step is a consultation to review the document and align it with your estate plan.
