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Can you plan to keep your home from passing through probate?

On Behalf of | Jul 6, 2021 | Estate Planning

New York has multiple ways for families of someone who recently died to handle their property. When someone dies with less than $50,000 worth of personal property, for example, their estate may qualify as a small estate.

However, real estate, regardless of its value, typically requires probate proceedings in New York. As someone who wants as much of their property to pass to loved ones as possible, is there anything you can do to keep your home or other real estate holdings from going through probate?

Reconsider how you hold title

As the probate court rules make clear, only real estate solely in a deceased individual’s name triggers probate proceedings. The way that you hold the title for your real estate affects what happens to it when you die.

If a family member lives with you and you want them to inherit the property when you die, the two of you can hold title as joint tenants with rights of survivorship. Rights of survivorship mean that your loved one can maintain their claim to the property after your death without it needing to pass through probate first while also acquiring your interest in the property.

Using a trust could also help

Creating a trust to hold your biggest assets, such as your home, is a common solution for those who want to bypass probate. The trust becomes the official owner of the property, so the probate courts don’t usually need to oversee the transfer of property from one beneficiary to another. You or someone else who serves as trustee will maintain control over the property.

Even after your death, the trustee will be able to manage the assets used to fund the trust according to your instructions. A trust gives you a longer-term control over certain assets, possibly allowing another generation to live in the home before you order the sale of the real estate with assets distributed to remaining errors or even a charity.

Moving assets into a trust can also help you minimize any estate tax liability you may have, while protecting your home or other real estate from creditor claims. Thinking about your long-term goals for your major assets like your home and help you maximize the benefits you receive from estate planning.