New York Homestead Exemption and Probate

Homestead exemption protect property assets from probate. Properties recognized under laws of homestead are off-limits to creditors seeking attachment. New York homestead law protects property owner rights to the value of an asset transferred to an estate or trust. Homestead declarations are automatic for title holders of residential property in the state. Jointly owned property owned by a married couple is held as a single married entity, “tenancy by the entirety” – not as individuals. Trustees of revocable trusts seeking homestead protections for property assets from lien, can consult with a licensed attorney specializing in estate probate law.  

NY Homestead Law

Federal and state property taxes are an exception to estate or trust homestead exemption from lien or attachment. No exempt homestead is exempt from taxation or from liquidation for purposes of payment of an outstanding assessment or tax lien. The NY C.P.L.R. §5206 Real property exempt from application to the satisfaction of money judgments outlines criteria for (a) homestead exemption; and (b) distribution of a property asset after the original owner has died. Homestead properties are “exempt from application to the satisfaction of a money judgment, unless the judgment was recovered wholly for the purchase price thereof: 1) lot of land with a dwelling thereon, 2) shares of stock in a cooperative apartment corporation, 3) units of a condominium apartment, or 4) a mobile home.”

Exemption Limits

Depending on where in New York a property is located, homestead exemption law restricts the total exemption limit according to county property values. For example, homestead properties in the counties of New York, Bronx, Kings, Queens, Nassau, Putnam, Richmond, Suffolk, Rockland, or Westchester are exempt to $165,550. Albany, Columbia, Duchess, Orange, Saratoga and Ulster counties limit exemption to $137,950. Exemption amounts in all other counties is $82,775. The state allows for double homestead exemption for married couples according to county at $331,100, $275,900, and $165,550, respectfully.

Rules of Succession

Surviving spouses have legal entitlement to residency at a homestead property for life. The surviving spouse has the option to elect division of homestead asset interest proportionally among surviving children. After the death of both spouses, New York rules of succession automatically transfer property assets to children, or the named family member(s) of the estate holder(s). Rules of succession provide that inherited homestead interest by family members is a “free and “clear” title on public record.

Shared marital property meeting homestead exemption criteria cannot be sold without consensual agreement of both spouses, or until the death of one, or both owners. Estate law restricts automatic transfer of title of a homestead property to relatives who are foreign nationals, posthumous relatives, or half relatives. In such circumstance, a probate courts would be responsible for the decision.

Contact a Probate Attorney

An estate law attorney experienced at matters of probate will advise a trustee client of exemption rules connected to a homestead asset. Ettinger Law Firm is a licensed New York attorney practice specializing in estate planning and probate litigation. Contact Ettinger Law Firm to schedule a consultation about a trust homestead asset or probate related-matter.      

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