A couple I met with recently has owned their brownstone in Brooklyn for nearly forty years. Their children are grown and live out of state, but the house is the family’s center of gravity. They came to me with a common question: “Our friends put their house in a trust to avoid probate. Should we?”
A good question. But not the first one I ask. The better question is, what do you want to happen to this home after you are gone? Is it a legacy to be passed down through generations, or is it a financial asset to provide for your children’s security? The answer determines the legal structure—not the other way around.
For many families, their home is their single most significant asset. Deciding how to manage it is a profound act of stewardship. A trust can be an excellent tool for this, but only when its purpose is clear from the start.
The Real Reason to Avoid Surrogate’s Court
People often talk about avoiding probate as the primary benefit of a trust. While true, the phrase “avoiding probate” does not capture the full picture. When an estate is probated in New York, the will becomes a public document in Surrogate’s Court. The entire process—from the inventory of assets to the final distribution—is a matter of public record.
For a family home, this can feel like an unnecessary intrusion. Your address, its approximate value, and who inherits it are all accessible to anyone who cares to look. Beyond privacy, the process itself takes time. Probate can easily take nine months to a year, or longer if complications arise. During that time, the home is in a legal limbo, overseen by the court-appointed executor. Selling it, renting it, or even making significant repairs can require court permission.
Placing the home into a trust privatizes the transfer of ownership. The trust—not you—owns the property on paper. When you pass away, the successor trustee you named simply follows the instructions in the trust document. No court proceeding. No public filing. No lengthy delay. The transfer happens directly, passing on the asset without passing on an administrative burden.
A Question of Control: Revocable vs. Irrevocable Trusts
Once you decide a trust is the right vehicle, the next decision is the type. This choice boils down to a single question: How much control are you willing to give up?
A revocable living trust is the most common choice for holding a primary residence. It is exactly what it sounds like—revocable. You create it, you transfer your house into it, and you act as the trustee. You retain complete control. You can sell the house, refinance the mortgage, or dissolve the trust entirely. Nothing changes about your day-to-day life. For probate avoidance and privacy, it works perfectly.
An irrevocable trust is a different instrument for a different purpose. When you place your home into an irrevocable trust, you are making a permanent gift. You give up control. You cannot act as your own trustee, and you cannot easily undo the transfer. Why would anyone do this? Primarily for asset protection—either from potential future creditors or, more commonly, to start the clock on the look-back period for long-term care Medicaid eligibility.
This is not a casual distinction; it is a bright line in the law. New York’s Estates, Powers and Trusts Law (EPTL) § 7-1.9, for example, establishes the formal consent required from all beneficiaries to modify or terminate a trust that is otherwise irrevocable. The law underscores the permanence of the decision. Choosing an irrevocable trust is a deliberate strategy with significant consequences, and it should only be undertaken with a clear understanding of the trade-offs.
When a Trust Isn’t the Right Answer
A trust is not always the best approach. The process of creating and funding a trust involves legal fees and administrative work. You must formally retitle the deed to your property, moving it from your name to the name of the trust. You may also need to update your homeowner’s insurance and inform your mortgage lender.
If your home is your only significant asset and your family situation is straightforward, the cost and complexity of a trust might outweigh the benefits. I have seen many situations where a simple will is perfectly adequate to achieve a family’s goals.
The key is to avoid seeing the trust as a default. It is one tool among many. Its value depends entirely on how well it serves your specific, clearly defined objectives for your property and your family. An intentional plan is always better than a complex one that does not align with your true wishes.
Before you consider the legal mechanics of a trust, the first step is a frank conversation about your vision for the property. We often begin this process by helping clients draft a statement of intent—a plain-English document that clarifies the future you envision for your home. That statement becomes the blueprint for any legal work that follows.
