Almost nobody inherits a house at a convenient moment. It arrives in the middle of grief, usually with siblings to coordinate, often from three states away, and almost always with paperwork nobody in the family has seen before. The house is rarely the hard part. The process around it is.

What probate actually does to a sale

Probate is the court process that confirms who has the legal authority to act for someone who has died. Until that authority exists on paper, nobody can sign a contract of sale, evict a tenant, access bank accounts or refinance — not the son who lived there, not the daughter paying the taxes, not even the family collectively agreeing.

In New York that means petitioning Surrogate’s Court, notifying the heirs, and waiting for letters testamentary if there is a will, or letters of administration if there is not. The timeline runs from a few months to well over a year depending on the county, whether the will is contested, and whether every heir can be located and served.

Meanwhile the house does not pause. Taxes accrue, insurance lapses or gets re-rated as vacant, the roof keeps aging, and the pipes freeze in February. Estates lose more money to carrying costs and neglect during probate than they ever lose on the sale price.

Trust versus will — the difference is enormous

This is the part I wish every homeowner understood before it matters. A will is a set of instructions that only takes effect after a court validates it. A trust holds the property while you are alive and transfers it under its own terms when you die.

A house held in a properly funded revocable trust generally passes to the beneficiaries without going through probate at all. The successor trustee can list and sell it in weeks, not months or years. No court calendar, no letters, no waiting for a judge’s signature before you can accept an offer.

The other differences matter too. Probate is a public filing — anyone can read what the estate held and who received it. A trust is a private document that is a bullet-proof set of instructions; and since it is almost impossible to overturn the wishes written into a trust, it is often referred to as “the hand from the grave”. Probate invites contest; a trust is almost impossible to challenge. And if the owner becomes incapacitated rather than dying, a will does nothing at all, while a trust already names who steps in and takes over.

This is not legal advice, nor am I an attorney — and just any old trust is not automatically right for every family. Trusts cost more to set up than a will, and a trust will only work if it is actually funded — I have seen beautifully drafted trusts that never had the deed transferred into them, which means the house went straight through probate anyway. But for a Long Island family whose main asset is a house that has appreciated for many years, the conversation is worth having while there is still time to have it.

Free estate planning consultation

Legal services for our clients are available through the established law firm of Christine Thea Rubinstein and Associates, and the firm offers a free estate planning consultation — whether or not you ever sell or buy a home with us.

That is a deliberate choice on our part. The families who call us in the hardest situations are almost always the ones where no prior planning had been done. An hour of conversation now costs nothing and can save you, your family and your estate months of court time and tens of thousands of dollars later.

Estate Law Exposé on iHeartRadio

If you want to hear these issues discussed at length, my wife Christine and I hosted Estate Law Exposé on iHeartRadio. We spent each episode on real situations families bring us — contested wills, inherited houses nobody can agree on, reverse mortgages coming due, family members trying to steal houses, trusts that were never funded, and the ordinary planning mistakes that turn into expensive problems a decade later.

It is the same advice we give in person.

Don’t wait to plan your estate!

When there is no plan at all

Most of the estates we handle arrive with no plan, an outdated will, or a trust that was never funded. That is normal, and it is workable. Here is what we actually do: