A family in Queens recently came to my office. Their mother had passed away, leaving the house they all grew up in. They had the original deed with her name on it and assumed they could simply go to the county clerk, file a form, and put the house in their names. They were stunned to learn this was not possible. Because their mother’s name was the only one on the deed and she had no trust, the house was now under the jurisdiction of the New York Surrogate’s Court. The next year of their lives would be spent in a legal process they never anticipated.
This is a story I see too often. People assume a will is enough, or that holding a deed is the same as owning the property. It is not. Transferring real estate after death is a formal process governed by state law. Without a deliberate plan, that process is probate.
How Title Dictates the Transfer
When a client asks me how their property will pass to their children, my first question is always the same: “How do you hold title?” The answer to that question determines everything. The language on the deed is the most powerful instruction you can leave.
In New York, property can be held in several ways:
- Sole Ownership: When a property is owned by one person, it becomes part of their probate estate. A will directs who inherits, but the Surrogate’s Court must first validate the will and appoint an executor. Without a will, New York’s intestacy laws decide the heirs.
- Joint Tenants with Rights of Survivorship (JTWROS): When two or more people own property this way, the surviving owner automatically inherits the deceased owner’s share. The property passes outside of probate. This is common, but it can create unintended consequences if one owner outlives the other by many years and never updates their own plan.
- Tenants in Common: Each owner holds a distinct, separate share of the property. When one owner dies, their share does not automatically go to the other owners. Instead, it passes to their heirs through their will and the probate process. This often leads to fractured ownership among family members who may not agree on the property’s future.
- Tenants by the Entirety: This is a special form of ownership available only to married couples. Much like JTWROS, it provides an automatic right of survivorship, and the property avoids probate when the first spouse dies.
The form of ownership is not a minor detail—it is the core of the plan, whether you intended it to be or not. Stewardship of a family’s most significant asset begins with understanding the name—and the words—on the deed.
The Probate Path: When the Court Is in Control
If real estate must pass through probate, the process is methodical and public. The will is filed with the Surrogate’s Court in the county where the person lived, such as Manhattan or Brooklyn. The court then officially appoints the person named in the will as the Executor. This person becomes a fiduciary, with a legal duty to act in the estate’s best interest.
The Executor’s duties include inventorying assets, appraising the property, paying the decedent’s final debts and taxes, and managing the real estate until it can be distributed or sold. Only after the court approves these actions can the Executor sign an Executor’s Deed to transfer the property to the heirs. The authority to sign this document—the form of which is specified in New York Real Property Law § 258—is granted only by the court.
This process takes time—often a year or more. It also creates costs, from court filing fees to appraisals and legal expenses. For families who need to sell a property to pay expenses or want to move on with their lives, the delays can be a significant burden.
A More Intentional Approach: The Trust
Many of my clients want to keep their family’s affairs private and out of court. For real estate, the most effective tool is a revocable living trust. This is a foundational element of generational planning.
We create a trust and then re-title the client’s home into the name of that trust. The client remains the trustee and beneficiary, maintaining complete control during their lifetime. They can sell the house, refinance it, or do anything else they could before. Day-to-day, nothing changes.
The difference occurs after their death. Because the trust—not the individual—owns the property, probate is unnecessary. The successor trustee they named can immediately manage the property according to the trust’s instructions. They can transfer the deed to beneficiaries or sell the property without asking a court for permission. This is a private, efficient, and deliberate transfer of a legacy asset.
This approach isn’t just about avoiding probate. It also provides a clear framework for handling complex family situations. What if you want to allow one child to live in the home for a period of time before it’s sold? What if you want to ensure the proceeds are split in a specific way or held for a grandchild’s education? A trust allows for that level of detailed, intentional planning that a simple will cannot offer.
The transfer of real estate is the transfer of a family’s anchor. It can be a source of stability for the next generation or a source of conflict and delay. The difference often comes down to whether a plan was made before it was needed.
If you own property in New York, the first step is to review your current deed. Bring that document, along with any existing will or trust, to your estate planning attorney. We can then have a direct conversation about how your property will pass to your heirs and what steps are needed to align that reality with your intentions.
