I often meet with families after a parent has passed away. The children come to my office with a will, thinking the family home in Brooklyn is now theirs. They are surprised—and often distressed—to learn that the will is not a key. It is a set of instructions for the Surrogate’s Court. The house, along with most other assets, is now frozen in probate, a court process that can easily take a year or more and consume a significant portion of the estate in fees.
This is the exact situation that putting a house in a trust is designed to prevent. It’s a foundational strategy for anyone who sees their home not just as an asset, but as a legacy.
From Personal Ownership to Fiduciary Stewardship
When you own a home, your name is on the deed. It is your personal property. When you put that house in a trust, you change its legal status. You execute a new deed that transfers ownership from you, the individual, to the trust itself. The new owner might be recorded as “Jane Doe, as Trustee of the Jane Doe Revocable Trust.”
The trust is a legal entity, like a corporation, with its own set of rules that you create. It holds the property for the benefit of your chosen beneficiaries. The person in charge of managing the trust—the trustee—has a strict legal obligation, a fiduciary duty, to follow your instructions. This is the essence of stewardship.
For most of our clients creating a revocable living trust, they serve as their own trustee during their lifetime. They retain complete control. They can sell the house, refinance the mortgage, or even dissolve the trust entirely. The only practical difference in their day-to-day life is the name on the deed. The real power of the trust is unlocked when they can no longer manage their affairs or after they pass away.
The Two Pillars: Avoiding Probate and Maintaining Control
Clients place their home in a trust for two primary reasons. The first is to bypass the Surrogate’s Court.
Because the trust owns the house, not the individual, the property is not part of the probate estate. When the grantor—the person who created the trust—passes away, the successor trustee you named simply steps in. They can manage or distribute the property according to the trust’s terms, without court permission or oversight. This saves your family an immense amount of time, money, and public scrutiny. Probate records are public; trust documents are private.
The second reason is control—the ability to direct your legacy with intention. A will generally distributes assets outright. A trust allows for far more nuance. You can specify that the house not be sold until your youngest child graduates from college. You can direct that it be held for the benefit of a special needs child without jeopardizing their government benefits. You can even create conditions that encourage responsible behavior, such as distributing funds only after a beneficiary reaches a certain age.
This is how you ensure the value of your home serves the next generation in the way you deem best. Stewardship.
The Critical Step: Funding the Trust
Creating the trust document is only half the process. A trust without assets is just an empty set of instructions. To make it work, you must “fund” it by transferring your property into it. For real estate, this means preparing and recording a new deed with the county clerk.
This step is non-negotiable, and it’s where we see many do-it-yourself plans fail. In New York, the law is very specific. For instance, Real Property Law (RPL) § 240-c details the exact process for a joint tenant to transfer their interest into a trust. Failing to properly re-title the deed means the house remains in your individual name. And if it’s in your name when you die, it goes to probate, defeating one of the primary purposes of creating the trust in the first place.
Revocable vs. Irrevocable Trusts for Real Estate
Trusts for real estate are typically either revocable or irrevocable.
A revocable living trust is the most common tool for probate avoidance and legacy planning. As the name implies, you can amend or revoke it at any time. You maintain full control, and for income tax purposes, it’s as if you still own the property personally. You still get the capital gains tax exclusion if you sell your primary residence, for example.
An irrevocable trust is a more permanent arrangement. Once you transfer an asset into it, you generally cannot get it back. You relinquish control. This sounds drastic, but it serves very specific purposes, such as protecting assets from future creditors or planning for long-term care and Medicaid eligibility. Transferring a home to an irrevocable trust is a significant decision with complex tax and personal implications, and it is not the right choice for every family.
Putting your house in a trust is not about finding a loophole. It is about using established New York law to create a clear, private, and efficient plan for your most significant asset. It replaces a public, court-driven process with a private transition managed by a person of your choosing, all according to a rulebook you wrote yourself.
The first step in this process is always to understand how your property is currently titled. If you would like to have us review your current deed and discuss whether a trust is an appropriate vehicle for your family’s goals, please schedule a consultation with our firm.
