A home is usually the largest asset a family owns. How it is titled, who inherits it, and whether it is protected from probate all change the moment you sign. In Real Estate Plan I devote a full chapter to this — Protecting Your Home & Assets: Estate Planning Before the Sale, the chapter most real estate books never thought to write, and the one that can save your family everything. It comes before any conversation about pricing, staging or finding a broker, and this page is a summary of it.

Before you list your home, you need to know who legally owns it, how that ownership is structured, and what happens to the transaction — and to your family — if something happens to you before it closes. That is not morbid planning. It is the most financially responsible thing you can do.

Every professional in the room is working for the buyer

Let me be direct about something. The standard real estate process in this country is designed around the buyer’s due diligence, not the seller’s. The buyer orders a title search. The buyer’s attorney reviews the title commitment. The buyer’s inspector walks the property. The buyer’s lender orders an appraisal. Every professional in the room, other than the listing agent, is working for or on behalf of the buyer.

Which means that in a conventional transaction, the first time a seller truly understands the full legal condition of their own property is when the buyer’s attorney sends a title objection letter. By then they are under contract. They have a closing date. They have a buyer waiting to move in. And suddenly they are in a negotiation they did not anticipate, from a position of weakness, trying to resolve in days what should have been resolved in weeks.

That is why the first thing we do with every listing — before the photographer is called, before the price is set, before a single buyer walks through the door — is the Real Estate Plan™ Pre-Listing Title and Compliance Search. When you know what is on the record before you list, you have time. Time to discharge an old mortgage, resolve a lien, close out a permit, or make a strategic decision about an unpermitted structure. That is what it means to sell from a position of strength.

The five hidden title problems we look for

• Unrecorded satisfied mortgages. Paid off years or decades ago, but the lender never filed the discharge. As far as the public record is concerned the lien still exists, and no title company will insure over it. Found before listing, a minor administrative task. Found under contract, a potential deal-killer.
• Open building permits. Work began, the final inspection never happened, and the gap can span decades. FHA and VA lenders in particular will not close over them, and buyers use them as a negotiating chip worth far more than it would have cost to close the permit out beforehand.
• Municipal violations. Building, zoning, fire and health violations are searchable public records that buyers’ attorneys routinely check. Unpaid fines become liens. Some municipalities will not permit conveyance at all without a compliance certificate.
• Illegal structures. Unpermitted decks, finished basements, in-law apartments, additions that expanded the footprint. The appraiser cannot count the square footage, the lender may require it removed or legalized, and the buyer asks for a reduction three weeks from closing.
• Judgment liens and tax warrants. A civil judgment in the county where the property sits automatically becomes a lien on it — old credit card judgments, contractor disputes, anything that went to court. Sellers are often genuinely surprised to find one. Found before listing it is manageable. Found the week before closing it is a crisis.

The permit, Certificate of Occupancy and violation side of this search is covered in depth on Permits & Violations — what an open permit actually is, why lenders react to it, and the three choices you have if something was built without one.

How your home is titled decides what happens next

Once you know what is on the public record, the next question is equally foundational: how is the property titled? The form of ownership recorded at your county clerk’s office determines what happens to the transaction, and to your family, if something happens to you.

• Sole ownership. Full control during life. Without a trust it goes through probate at death. Simple and clean during life, potentially complicated at death.
• Joint tenancy with right of survivorship. Common for married couples. The property passes automatically to the survivor, outside probate. But when the surviving spouse dies the property is now in sole ownership and the probate exposure returns in full.
• Tenants in common. Each owner holds a divisible percentage with no survivorship. When one owner dies their share goes to their estate — and if that estate has no plan, to probate; if it has contested heirs, to contested probate. I have watched tenants-in-common arrangements destroy family relationships and stall transactions for years.
• Ownership in trust. Held in the name of a trust with you as trustee during your lifetime. You keep full control. At your death the successor trustee administers the asset according to your instructions — no court, no filing, no public record, no delay.

Why a trust before you list, not after

I am not an attorney. What follows reflects years of working alongside estate planning attorneys and watching what protects families and what fails them. For advice on your own situation, speak with a qualified estate planning or elder law attorney.

• It keeps a pending sale alive if you die before closing. This is the one sellers never think about. If the home is held in trust and you die after signing the contract but before closing, your successor trustee steps in and completes the sale. The buyer does not lose the deal. Your family does not lose the proceeds. The transaction closes on schedule.
• It avoids probate entirely. A properly funded revocable trust transfers your home outside of court. No filing, no waiting, no public record of what you owned or who received it.
• It protects your beneficiaries from each other — and from strangers. A will can be contested. A trust is significantly harder to challenge. The cousin who never visited, the estranged sibling, the distant relative who materializes at the courthouse — a trust is a structural barrier a will does not provide.
• You keep complete control during your lifetime. A revocable trust can be amended or revoked at any time while you are alive and competent. You are the trustee. Nothing changes about your daily life except that you have a plan.
• It handles every asset, not just the house. Bank accounts, investments, personal property, additional real estate — all coordinated through a single document.

“A will is not a plan. It is instructions to a court.”

When Christine Thea Rubinstein, Esq. tells a room they could write their will on a napkin, it stops them cold. A handwritten will is legally valid in many states with no attorney, no notary and no witnesses. Her point is not that you should use a napkin. Her point is that any will is better than no will — so if you are waiting until you can afford an attorney, until the kids are older, until after the sale, stop waiting and write something down today.

But a will still goes through probate. It does not bypass the court; it tells the court what to do once the court has taken jurisdiction over your estate. And once that happens, you have lost control of the timeline. The progression runs from least protection to most:

• Nothing. Your state’s intestacy laws decide who gets what. The court appoints an administrator. Your family may have no say.
• A will only. Better than nothing, and your wishes are on record — but public, slow, and vulnerable to contest.
• A will plus a trust. The trust handles what was transferred into it during your lifetime; a pour-over will catches the rest. Better — but the trust must actually be funded.
• A fully funded revocable trust. Your home and other assets titled in the name of the trust, administered privately and without court involvement. This is the plan.

The deed in escrow

There is an advanced strategy that sits at the intersection of real estate law and estate planning, and very few sellers know to ask about it. It is particularly valuable if you are listing now but have not yet had time to establish and fund a trust.

An estate planning attorney drafts a deed transferring the property into a revocable living trust. It is properly executed and notarized — but it is not recorded. It is held in escrow by the attorney under a formal escrow agreement. If you complete the sale, the escrowed deed is destroyed; it was never needed, and the sale closes in your name as normal. If you die before closing, the deed is released from escrow and recorded, ownership vests in the trust, and the successor trustee steps in immediately — without the delay, cost and vulnerability of a probate proceeding.

It is not right for every situation, and it has to be implemented by a qualified real estate attorney with a properly drafted escrow agreement. But when the circumstances call for it, it is elegant, effective and remarkably simple.

The five-year clock, and the real cost of doing nothing

Where a revocable trust serves your estate planning needs, an irrevocable Medicaid Asset Protection Trust serves a different and equally critical one: protecting your home from Medicaid spend-down. If you ever need long-term care and apply for Medicaid, the program looks back at asset transfers made in the previous five years and treats anything inside that window as though it were never transferred. A home placed in a properly structured irrevocable trust more than five years before the application is protected. The trade-off is control — an irrevocable trust cannot easily be amended or revoked.

Here is the number I want you to sit with. In New York the average nursing home costs roughly six hundred dollars a day — about $18,250 a month, or $219,000 a year. Full-time in-home care typically runs a fraction of that. Without planning, the home you spent decades paying for can be spent down dollar for dollar before coverage begins.

And the clock only runs forward. If you fund the trust today, the five years start today. Wait twelve months and you have added twelve months of exposure. I have watched it happen. The math is unforgiving.

Rentals, land and commercial property

The book is written for sellers of homes, but the same principles decide what happens to every other kind of property a family owns.

Rental property does not stop operating because an owner died. Leases run, rent is due, security deposits are still held in trust, repairs still have to be made — and until someone has legal authority, nobody can sign a check or a contract. Ownership through an LLC can separate personal assets from what happens at the property, but only if the entity is maintained properly, the insurance names the right owner, and the operating agreement says what happens when a member dies. Moving an already-mortgaged property into an entity can also trigger lender consent and transfer tax consequences that are far cheaper to plan for than to unwind.

Land is where these problems compound quietly, because land is held for decades and produces no income to carry itself while an estate is open. A parcel passes without a plan, then passes again, and within two generations a single lot is owned in undivided fractional shares by relatives who have never met — any one of whom can force a partition sale.

Commercial property is almost always held in an entity, which means the asset that passes to the next generation is not the building but the membership or partnership interest. Whether the operating agreement has a funded buy-sell provision, an agreed method of valuation, and clear answers on lender consent and personal guarantees decides whether a surviving partner can buy out a deceased partner’s family — or whether the building has to be sold to settle it.

The team you need before you list

Three different attorneys do three different jobs, and paying the wrong one to solve the wrong problem is a common and expensive mistake.

• Elder law attorney. Medicaid planning, long-term care strategy, guardianship, and the intersection of aging and asset protection. If Medicaid planning or trust structuring is relevant to you, this is who you need. Christine Thea Rubinstein, Esq. practices in this space.
• Estate planning attorney. Wills, trusts, powers of attorney and healthcare directives. May or may not have deep Medicaid expertise — ask specifically.
• Real estate attorney. The transaction itself: contract review, title work, closing. Required at closing in New York. Can implement the deed-in-escrow strategy. Works alongside your estate planning attorney, not instead of them.

A revocable trust with a properly recorded deed can typically be completed in two to four weeks if everyone is responsive. So if you are listing in sixty days, there is still time. But if Medicaid protection is the goal, the clock started the day you read this.

Questions to ask before you hire

• Do you handle Medicaid planning as part of your practice?
• How many irrevocable Medicaid Asset Protection Trusts have you drafted in the last year?
• Are you familiar with the deed-in-escrow strategy for probate avoidance during a pending sale?
• Can you coordinate directly with my real estate attorney on the transaction timeline?
• What is your fee structure — flat fee, hourly, or a combination?
• How long will it take to have a fully funded trust in place from today?

What changes the moment you sign

• Who owns the property, and in what proportion
• Who inherits it, and whether that happens automatically or through the court
• Whether a surviving spouse or co-owner can sell without a court appointment
• Whether a sale already under contract survives your death, or collapses
• Which creditors can reach the property, and whose creditors they are
• Whether the property is exposed to a future Medicaid look-back, measured in years
• Whether an existing will or trust still does what it was written to do, or has just been quietly contradicted by a deed

This page summarizes a chapter of Real Estate Plan and is general information about how real estate and estate planning intersect. It is not legal or tax advice, costs and rules vary by state and change over time, and every family’s situation differs. Speak with a qualified attorney about your own circumstances before acting on any of it.