A client from Brooklyn called me last week. He had read an article online about something called a “Transfer on Death” deed and wanted to put one on his brownstone. The idea was to avoid probate. It sounded simple, he said. Almost too simple.
He was right to be skeptical. While these instruments are popular in other states, they are a legal dead end here. Attempting to use a tool that our state’s laws do not recognize is not a shortcut—it’s a direct path to the very place you’re trying to avoid: Surrogate’s Court.
What a Transfer on Death (TOD) Deed Is—And Isn’t
In the states that permit them, a Transfer on Death (TOD) deed functions much like a beneficiary designation on a life insurance policy. The property owner records a deed that names a specific person to inherit the real estate upon the owner’s death. While the owner is alive, they retain full control—they can sell, mortgage, or rent the property without restriction. Upon their death, ownership automatically vests in the named beneficiary, bypassing the probate process entirely.
The appeal is obvious. It seems to offer a clean, simple transfer of a family’s most significant asset. However, legal instruments are creatures of state statute. Their validity depends entirely on whether the state legislature has passed a law authorizing their use. More than half the states have done so, many adopting a version of the Uniform Real Property Transfer on Death Act.
New York is not one of them. Our state legislature has not authorized TOD deeds for real property. Any such deed filed in a county clerk’s office in New York would be invalid for the purpose of transferring property at death. The property would remain part of the decedent’s probate estate, to be distributed according to their will—or, if they had no will, according to state intestacy laws. The attempt to avoid probate would have failed completely.
The New York Alternatives for Passing Real Estate
For New Yorkers who want their home or other real property to pass to their heirs without court intervention, we have long-established and effective tools. The key is to be deliberate and use the structures our laws recognize.
The Revocable Living Trust
For most of the families and executives I represent, the most effective instrument for stewardship of real estate is a revocable living trust. This isn’t just about avoiding probate; it’s about maintaining control and planning for contingencies.
Here is how it works: We create a trust agreement, and you—the grantor—transfer your property’s title into the name of the trust. You typically serve as the initial trustee, so you retain complete authority to manage, sell, or refinance the property just as you did before. Nothing changes in your day-to-day life. The trust is a container, and you still control what’s inside. Upon your death, a successor trustee you designated steps in to manage and distribute the property according to your precise instructions, privately and efficiently. The entire framework for this is laid out in New York’s Estates, Powers and Trusts Law (EPTL) Article 7.
Joint Tenancy with Rights of Survivorship
Another common strategy is to own property as “joint tenants with rights of survivorship.” This is frequently used by married couples. When one joint owner dies, their share automatically passes to the surviving joint owner(s) by operation of law. It is simple and avoids probate for the death of the first owner.
This simplicity, however, comes with significant limitations. Adding a non-spouse, such as a child, to your deed as a joint tenant can create immediate problems. You have given them a present ownership interest, potentially exposing your home to their creditors, lawsuits, or a divorce settlement. It also fails to plan for what happens if you and the other joint owner die simultaneously or when the last owner passes away. The property will end up in probate then.
Intentional Stewardship Over Legal Shortcuts
The desire to avoid probate is understandable. It can be a lengthy and public process. But the goal should not be achieved by reaching for an invalid shortcut. True estate planning is about creating a deliberate structure that protects your family and preserves your legacy.
A trust, unlike a simple deed, can account for life’s complexities. What if your intended beneficiary is a minor at the time of your death? What if they have special needs, or are not financially responsible? A trust allows you to appoint a trustee—a fiduciary with a legal duty to act in the beneficiary’s best interest—to manage the property for them. You can set conditions for its use or sale, ensuring the asset provides lasting support rather than a brief windfall.
Stewardship.
That is what we are building. A plan that anticipates challenges and provides clear direction, guided by the established and predictable laws of our state. The internet offers a world of information, but not all of it applies to your life here in New York. A deed that works in Ohio or Texas is just a piece of paper here—one that can cause profound legal problems for the people you intend to protect.
If you own property and want to ensure it passes to the next generation efficiently, the first step is to understand how it is currently titled. Schedule a review of your current deed with our firm, and we can analyze how that property fits into your family’s broader legacy plan.
