A son recently sat in my office with the deed to his late mother’s Brooklyn home. His name was on it, right next to hers. He assumed that since he was a co-owner, the property was now his. The problem was two small words on the document: “tenants in common.”
Those two words meant his mother’s half of the house did not automatically pass to him. Instead, her 50% interest was frozen, locked into her estate, and destined for a lengthy, public, and often costly journey through New York’s Surrogate’s Court. His assumption was understandable, but it highlights a critical point I discuss with clients every week: avoiding probate is less about what you own and more about how you own it.
The Limits of Joint Ownership
Putting a child or another heir on a deed as a joint owner is a common, well-intentioned strategy to avoid probate. When done correctly, it works. If the deed had specified “joint tenants with right of survivorship,” the son would have automatically inherited his mother’s share upon her death, outside of court supervision. The property would have become his immediately.
But this approach, while simple, is a blunt instrument with significant risks. When you add someone as a joint owner to your property, you give them a present ownership interest. This means the property is now exposed to their financial life—their debts, their creditors, a future divorce settlement. You also lose control. Selling or refinancing the property now requires their signature and consent.
Furthermore, adding a non-spouse to a deed can be considered a taxable gift if the value exceeds the annual gift tax exclusion. While the immediate tax liability might be zero due to the lifetime exemption, it still requires a federal gift tax return. What seems like a simple fix often creates lasting complications.
The Revocable Trust: A More Deliberate Path
For most families I represent, a more prudent instrument for holding title to major assets is a revocable living trust. A trust is a private legal agreement that allows you to transfer ownership of your assets—your home, investment accounts, business interests—to a legal entity that you control.
You act as the trustee during your lifetime, managing the assets just as you always have. You can buy, sell, or mortgage property held in the trust without restriction. The key difference is that upon your death, the assets are not in your personal name. They are owned by the trust. Because of this, they are not subject to the jurisdiction of the Surrogate’s Court. There is no probate.
Instead, the successor trustee you named—perhaps a responsible child, a trusted friend, or a corporate fiduciary—steps in to manage and distribute the assets according to the precise instructions you left in the trust document. This process is private, efficient, and allows for far more nuance than simple joint ownership. A trust can specify that a child inherits at a certain age, protect a beneficiary’s inheritance from their own creditors, or manage assets for a loved one with special needs. The creation and execution of these trusts must follow specific state formalities, as outlined in New York’s Estates, Powers and Trusts Law (EPTL) § 7-1.17, to be legally valid.
What New York Law Does Not Allow
You must also understand the tools that are unavailable in our state. Many online articles promote “Transfer on Death” (TOD) deeds for real estate. These deeds allow an owner to name a beneficiary who will automatically inherit the property at the owner’s death, avoiding probate. It sounds simple and effective.
However, New York is one of the few states that does not recognize TOD deeds for real property. An attempt to create one here will likely fail, leaving the property to pass through your will—and through probate. While you can use TOD or “Payable on Death” (POD) designations for bank accounts and brokerage accounts, they are not an option for your home or other real estate.
Stewardship Starts with an Asset Review
The goal is to be intentional. Simply adding a name to an account or deed might seem like an easy way to avoid probate, but it can create more problems than it solves. True stewardship of your legacy involves a deliberate plan that protects your assets, provides for your family, and minimizes the involvement of the courts.
The first step is to understand how your assets are currently titled. Before considering any changes, I recommend my clients begin with a complete inventory. Gather the deeds to your properties, your recent bank and brokerage statements, and your life insurance policies. The next step is to schedule a session to review these documents and identify which assets are unnecessarily exposed to the probate process.
