In New York, “homestead” property is the family residence — the home a person actually lives in — and New York treats it differently from other estate assets during probate. Unlike some states, New York does not give the homestead a sweeping, automatic shield from inheritance or sale. Instead, it protects a limited dollar value of the home from creditors under the homestead exemption (CPLR 5206) and gives a surviving spouse and minor children specific rights through exempt property allowances (EPTL 5-3.1) and the spousal right of election (EPTL 5-1.1-A). Understanding how those pieces fit together inside a Surrogate’s Court probate is essential before anyone tries to sell, transfer, or fight over the house.
I have seen more Brooklyn families come apart over the family home than over any other asset. The brownstone, the two-family in Bay Ridge, the co-op in Sheepshead Bay — these are not just dollar figures on an estate inventory. They are where people grew up, where a parent was cared for, and often the single most valuable thing the decedent owned. When a guardianship for an incapacitated parent transitions into a probate after that parent dies, the house is usually the flashpoint. This article walks through how the homestead actually behaves under New York law.
What “homestead” means under New York law
New York does not have a Florida-style constitutional homestead. There is no provision that makes the family home pass automatically outside the estate or that exempts it entirely from creditors. Anyone who tells you otherwise is borrowing law from another state, and that mistake can be expensive.
What New York does have is a homestead exemption under CPLR 5206. It protects a defined amount of equity in a principal residence from being seized to satisfy money judgments. The protected amount varies by county, and the downstate counties — including Kings County (Brooklyn), New York, Queens, the Bronx, Richmond, Nassau, Suffolk, Rockland, Westchester, and Putnam — carry the highest exemption tier. The exemption attaches to a house, condominium, co-op unit, or mobile home that the debtor occupies as a residence.
Two things matter for probate. First, the exemption shields equity, not the whole property — if the home is worth far more than the exemption amount, the excess equity is reachable by creditors. Second, the exemption follows the homeowner and, after death, can continue to protect a surviving spouse or family members who remain in the home, but it is not an inheritance rule. It does not decide who gets the house. That question is governed by the will, by the deed, and by the rules of intestacy.
How the house actually passes: title controls first
Before you ever reach probate, look at how the deed reads. Title, not sentiment, determines the starting point.
- Joint tenancy with right of survivorship or tenancy by the entirety. A home held this way passes automatically to the surviving co-owner the moment the other owner dies. It does not go through probate at all. A married couple holding a Brooklyn home as tenants by the entirety is the most common example — the surviving spouse owns it outright by operation of law.
- Tenancy in common. Each owner holds a separate, divisible share. The decedent’s share passes through the estate — either under the will or by intestacy — and that share is a probate asset.
- Sole ownership. If the decedent owned the home alone, it is fully a probate asset and the Surrogate’s Court process governs who inherits and how it can be sold.
- Held in a revocable living trust. A home properly deeded into a funded trust avoids probate and passes under the trust terms. This is one of the strongest reasons families use trusts in New York, where probate of real property can be slow.
I cannot stress this enough: pull the deed before you assume anything. I have watched families spend months in probate fighting over a house that, it turned out, had passed automatically to the surviving spouse years earlier. New York recognizes several different routes a New York estate can take through Surrogate’s Court, and which one applies depends heavily on how the real property was titled.
Probate of the family residence in Surrogate’s Court
When the home is a probate asset, it moves through the Surrogate’s Court for the county where the decedent lived — for Brooklyn residents, that is Kings County Surrogate’s Court. The named executor in the will (or, with no will, an administrator chosen under the SCPA priority rules) must be formally appointed before anyone has authority to act for the estate.
Once the will is admitted to probate and letters testamentary issue, the fiduciary holds legal authority over the house. That fiduciary can maintain it, insure it, collect rent on a two- or three-family building, and — when the estate plan or the beneficiaries’ interests require it — sell it. A sale of estate real property generally requires either authority in the will, the consent of the beneficiaries, or court approval, and the proceeds become part of the estate to be distributed after debts, taxes, and expenses are paid.
Two practical realities slow this down in Brooklyn. Co-ops add a layer because the estate inherits shares in a corporation and a proprietary lease, and the co-op board’s approval requirements still apply to any transfer. And contested estates — where heirs disagree about whether to keep or sell — can stall the property for years. For a clear overview of how the core proceeding works, families often start with this explanation of the NYC probate proceeding in New York.
Small estates and the home
New York offers a streamlined path called voluntary administration, also known as the small estate proceeding, under SCPA Article 13. It is available when the decedent’s personal property is worth $50,000 or less. The catch for homeowners: real property is generally excluded from that calculation and cannot be transferred through Article 13. So if the chief asset is the house, the small estate shortcut usually will not work, and a full probate or administration is required. I mention this because clients frequently hope to avoid full probate using SCPA 13 and are surprised the house disqualifies them.
The surviving spouse: exempt property and the right of election
New York gives a surviving spouse meaningful protection that touches the family home, and it comes from two distinct sources.
First, exempt property under EPTL 5-3.1. This statute sets aside certain items and a cash allowance for a surviving spouse (or, if there is no spouse, for minor children) ahead of general estate distribution. It covers things like a vehicle up to a statutory cap, household furniture and appliances, and a money allowance. While EPTL 5-3.1 does not hand over the house itself, it protects the contents and the immediate financial cushion a family living in that home needs, and those items pass outside the claims of ordinary creditors.
Second, and more powerful, the spousal right of election under EPTL 5-1.1-A. A surviving spouse in New York cannot be disinherited. If the will leaves the spouse less than the elective share — the greater of $50,000 or one-third of the net estate — the spouse may elect against the will and claim that one-third. Critically, the elective share is calculated against an augmented estate that includes not just probate assets but also many testamentary substitutes, such as jointly held property, certain transfers, and Totten trusts. That means a homeowner cannot simply re-title the family home into joint names with a child to cut out a spouse; that transfer is typically pulled back into the calculation.
The election must be made within a strict window — generally six months after letters are issued, and no later than two years after death. Miss it and the right is gone. In contested estates, I treat that deadline as sacred.
When guardianship turns into probate: the homestead at the center
The hardest cases I handle begin while the homeowner is still alive but incapacitated. A parent develops dementia, an Article 81 guardian is appointed to manage their affairs, and the family home is the centerpiece of the guardianship estate. The guardian maintains the house, pays the taxes, and sometimes seeks court permission to sell it to fund care. Then the parent dies, and the matter transitions from guardianship to probate — often with the same family tensions, now multiplied.
Several flashpoints recur:
- What the guardian did with the house. If a guardian sold the home, or transferred it, or took out a reverse mortgage during the guardianship, those acts get scrutinized once probate opens. Heirs who expected to inherit the house may discover it is gone or encumbered.
- Lifetime transfers made under a power of attorney. If a child held a New York statutory durable power of attorney under GOL 5-1501 and used it to transfer or mortgage the home before incapacity was formalized, the validity and authority for that act becomes a probate dispute. Gifting authority under a New York POA requires a specific gifts rider and clear authorization; transfers beyond it can be unwound.
- Who has standing and priority. The person who served as guardian does not automatically become executor or administrator. The SCPA controls fiduciary appointment, and a contested guardianship frequently spills directly into a contested administration.
- The spouse’s continuing rights. A surviving spouse’s exempt property and elective share rights survive the guardianship entirely and attach at death, regardless of what happened during the incapacity.
The lesson I give every family: decisions made during a guardianship echo loudly in the probate that follows. Document everything, get court approval for major real property decisions, and keep the eventual probate in mind from the day the guardianship is opened.
Creditors, the homestead exemption, and estate debts
A decedent’s debts do not vanish. During probate, the fiduciary must give creditors an opportunity to present claims, and valid claims are paid from estate assets before beneficiaries receive anything. Where does the homestead exemption fit?
The CPLR 5206 exemption protects a capped amount of equity in the principal residence from money judgments, and that protection can carry over to benefit a surviving spouse or family member who continues to occupy the home. But it is a shield of limited size. If the home holds equity well above the exemption, the surplus is available to satisfy estate debts, and in a heavily indebted estate the fiduciary may have to sell the house to pay creditors and taxes. The exemption can preserve a slice of value for the family; it rarely saves the whole house in a high-value Brooklyn property.
Two debts deserve special attention. A mortgage is a secured lien that survives death and runs with the property — heirs take the home subject to it. And if the decedent received Medicaid for long-term care, the state may assert an estate recovery claim against the home as a probate asset, which is one more reason title planning and trusts matter so much in New York.
Planning ahead so the home never becomes a battlefield
Almost every fight I have described is preventable with planning done while the homeowner has capacity. A few tools do the heavy lifting:
- A revocable living trust with the home properly deeded in, so the property avoids Surrogate’s Court entirely and passes privately. See our overview of wills and estate documents to understand how a trust fits alongside a will.
- A carefully drafted statutory durable power of attorney under GOL 5-1501, with an explicit gifts rider if real property transfers are ever contemplated — so an agent’s authority is unquestionable.
- A health care proxy so medical decisions never force an emergency guardianship that puts the home into court control.
- Deliberate title planning — choosing between tenancy by the entirety, joint tenancy, or trust ownership with the spousal elective share in mind, not as an afterthought.
Families with property in more than one state need coordinated planning so that a New York home and an out-of-state home are handled under the correct law for each. Our affiliated office handles probate for property located in Florida, and we routinely coordinate when a Brooklyn family owns a second home down south.
If you are dealing with a family home caught in a New York probate — or a guardianship that is about to become one — get advice before you list the property, sign a deed, or let a deadline pass. You can reach our team through our contact page or learn more about how we handle probate matters in Brooklyn.
Frequently Asked Questions
Does New York have a homestead exemption like Florida?
No. New York does not have a Florida-style constitutional homestead that shields the entire family home from creditors or passes it automatically outside the estate. New York’s homestead exemption under CPLR 5206 protects only a capped amount of equity in a principal residence from money judgments, with the highest exemption tier applying to downstate counties including Kings County (Brooklyn). It does not determine who inherits the house.
Does the family home always have to go through probate in New York?
Not always. It depends on the deed. A home held as tenancy by the entirety or joint tenancy with right of survivorship passes automatically to the surviving co-owner and avoids probate. A home deeded into a funded revocable living trust also avoids probate. But a home owned solely by the decedent, or held as a tenancy in common, is a probate asset handled in Surrogate’s Court.
Can a spouse be disinherited from the New York family home?
Generally no. Under the spousal right of election in EPTL 5-1.1-A, a surviving spouse can claim the greater of $50,000 or one-third of the net estate, calculated against an augmented estate that includes many non-probate transfers. So re-titling the home to exclude a spouse usually fails. The election must be made within roughly six months of letters issuing and no later than two years after death.
Can I use the New York small estate proceeding to transfer the house?
Usually not. Voluntary administration under SCPA Article 13 is available only when the decedent’s personal property is $50,000 or less, and real property is generally excluded from that calculation and cannot be transferred through Article 13. If the house is the main asset, a full probate or administration in Surrogate’s Court is normally required.
What happens to the home if a guardianship was in place before death?
When an Article 81 guardianship transitions into probate, the home is often the central dispute. Any sale, transfer, mortgage, or reverse mortgage the guardian arranged gets scrutinized, and lifetime transfers made under a power of attorney can be challenged. Serving as guardian does not make someone the executor or administrator — fiduciary appointment follows the SCPA. A surviving spouse’s exempt property and elective share rights attach at death regardless of what happened during the guardianship.
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