A client recently came to my office after purchasing a brownstone in Brooklyn. Having moved from Texas, where she had used a “Transfer on Death” (TOD) deed for her previous home, she asked me to prepare one for her new property. This is a common question, especially from those who have lived in one of the roughly 30 states that permit these instruments. I had to explain that in New York, we approach the transfer of real estate differently—and for deliberate reasons.
The short answer is no. New York does not recognize Transfer on Death deeds for real property. While these deeds automatically transfer a property’s title to a named beneficiary upon the owner’s death, our state’s property and trust laws provide more established and protective mechanisms for legacy planning.
New York’s Deliberate Approach to Property Transfers
The absence of a TOD deed statute in New York isn’t an oversight. It is a reflection of a legal tradition that prioritizes a well-regulated transfer of assets through its Estates, Powers and Trusts Law (EPTL). Instead of a simple form, New York law encourages property owners to use instruments that offer greater protection, control, and contingency planning. The goal is the same—avoiding the time and expense of Surrogate’s Court—but the methods are more durable.
A TOD deed is a blunt instrument. It transfers property, but it does little else. It doesn’t account for a beneficiary who is a minor, who develops special needs, or who may not be financially responsible. It offers no protection from a beneficiary’s creditors or a future divorce. It simply moves title from one name to another. We build plans that anticipate life’s contingencies, and for that, we rely on more sophisticated tools.
The Stronger Alternatives to a TOD Deed in New York
When a client wants to ensure their home passes to the next generation without court intervention, we typically consider two primary avenues. Each serves a different purpose and comes with its own set of responsibilities.
The Revocable Living Trust: The Gold Standard of Stewardship
For the vast majority of my clients, a revocable living trust is the most effective way to manage real estate. By deeding your property into a trust, you are not giving up control. You—as the grantor—typically name yourself as the trustee, managing the property just as you always have. You can sell it, refinance it, or rent it out. The trust is simply the new legal owner for the purposes of title.
The real power is in the transition. Upon your passing, the successor trustee you named—perhaps an adult child, a trusted friend, or a corporate fiduciary—steps in to manage the trust’s assets according to your specific instructions. The property title passes to your chosen beneficiaries without any involvement from Surrogate’s Court. It is private, efficient, and allows for layered, thoughtful instructions. You can stipulate that a house not be sold until your youngest child finishes college or set up provisions to manage the property for a beneficiary who isn’t ready for the responsibility. This level of detail is impossible with a simple deed.
The legal framework for this is well-established. For instance, New York EPTL § 7-1.17 specifies the formal requirements for creating a lifetime trust, ensuring these transfers are clear and legally sound.
Joint Tenancy with Rights of Survivorship: Simple but Risky
Another way to avoid probate is to own property as “joint tenants with rights of survivorship.” When one owner dies, the property automatically passes to the surviving joint owner. This is common for married couples. However, I counsel caution when considering adding a child or another individual as a joint tenant for estate planning purposes.
When you add someone to your deed as a joint tenant, you are giving them a present ownership interest. This has immediate consequences. The property becomes exposed to that person’s financial life—their debts, their potential lawsuits, a future divorce settlement. Furthermore, you can no longer sell or mortgage the property without their consent. It is a simple tool, but its simplicity comes at the cost of control and can create unintended family complications.
Intentional Planning Over Simple Transfers
The desire to avoid probate is a sensible one. The process can be lengthy, costly, and makes your family’s affairs a matter of public record. A TOD deed achieves that single goal, but true estate planning is about more than just avoiding a court process. It’s about stewardship.
Stewardship means ensuring your assets are transferred in a way that protects them and benefits your family for the long term. It requires thinking through contingencies and building a structure that is both resilient and reflective of your values. While other states have opted for the simplicity of a TOD deed, New York’s legal framework pushes us toward a more deliberate and protective approach to legacy.
If you own real estate in New York, the first step is to understand how your property is currently titled. To discuss how your home fits into your broader estate plan, I invite you to schedule a confidential review of your current deed. We can then explore whether a revocable trust is the right structure to protect your family’s most significant asset.
