When a Brooklyn family loses a parent who owned a multi-family brownstone outright, the next nine months belong to Surrogate’s Court. The immediate crisis for the surviving children is rarely about property taxes or routine maintenance—it centers on who actually has the legal authority to change the locks, collect rent from the garden apartment, and pay the mortgage. A deed is far more than a historical receipt proving you purchased real estate—it is a fundamental instrument of generational wealth transfer. The exact legal phrasing printed after your name on that document dictates whether your family assumes immediate control of the property upon your death, or whether they spend a year trapped in probate court.
I frequently review estate plans for clients who have beautifully drafted wills, only to discover that the deeds to their homes completely contradict their written wishes. A will cannot override a recorded deed. To practice deliberate stewardship over your assets, you must understand exactly how your real estate is titled. Under New York law, there are four primary ways to hold title to property, and each carries profound implications for asset protection, tax liability, and inheritance.
Tenancy in Severalty: The Burden of Sole Ownership
The simplest form of ownership is holding property in severalty. Despite the plural-sounding name, this means the property is entirely severed from all other individuals—you own it alone. You possess absolute control over the real estate during your lifetime. You can mortgage it, sell it, or lease it without requiring permission from a co-owner.
However, sole ownership guarantees court involvement when you die or if you become incapacitated. Because no one else has a legal right to the property, your death leaves the real estate legally frozen. It must pass through probate. If you die with a valid will, the Surrogate’s Court will eventually appoint your designated executor as the custodian of the property. If you die without a will, New York intestacy statutes dictate which of your relatives inherits the home, and a court-appointed administrator takes control.
The danger of tenancy in severalty is not limited to death. If a sole owner suffers a severe stroke or cognitive decline, the property cannot be sold or refinanced to pay for their medical care unless they previously executed a durable power of attorney. Without that specific document in place, the family is forced to petition the court for an Article 81 guardianship—a public, expensive, and emotionally draining process—just to manage the house.
Tenancy in Common: The Default for Unmarried Co-Owners
If you purchase a commercial property with a business associate or inherit a family cottage with your siblings, the law makes a strict assumption about your relationship. Under New York Estates, Powers and Trusts Law (EPTL) § 6-2.2, a disposition of property to two or more unmarried persons automatically creates a tenancy in common unless the deed explicitly states otherwise.
As tenants in common, each owner holds a distinct, fractional interest in the property. You might own 60 percent while your partner owns 40 percent. The critical defining feature of this tenancy is that there is no right of survivorship. If you die, your 60 percent share does not automatically transfer to your business partner. Instead, your share becomes part of your probate estate and passes to your heirs.
This structure provides prudent stewardship for investors who want their families to inherit the value of their business assets, but it regularly creates unintended disasters for unmarried couples. If an unmarried couple buys a home together without specifying a joint tenancy, and one partner dies unexpectedly, the survivor suddenly finds themselves co-owning their primary residence with their deceased partner’s estranged parents or minor children. Furthermore, a tenant in common can sell their fractional share or borrow against it without the consent of the other owners, potentially forcing a partition lawsuit where a judge orders the sale of the entire property.
Joint Tenancy with Right of Survivorship: The Automatic Transfer
To bypass the probate process entirely, co-owners must take deliberate action at the time of purchase. A joint tenancy with right of survivorship requires specific language on the deed. In this arrangement, all tenants hold an equal, undivided interest in the whole property. When one owner passes away, their fractional interest essentially evaporates and is immediately absorbed into the surviving owner’s share.
This transfer happens instantly by operation of law. You cannot leave a joint tenancy interest to your children in your will—the survivorship mechanism on the deed completely supersedes the Surrogate’s Court. We frequently see aging parents attempt a DIY estate plan by adding an adult child to their deed as a joint tenant, assuming this is an efficient way to transfer the house.
I strongly advise against this tactic. While adding a child to the deed avoids probate, it simultaneously exposes your most valuable asset to their liabilities. The moment your child becomes a joint tenant, your home becomes vulnerable to their creditors, a divorcing spouse, or a bankruptcy trustee. Additionally, transferring half of your home to a child during your lifetime is considered a taxable gift by the IRS and triggers a severe penalty period for Medicaid eligibility if you require nursing home care within the 60-month look-back window.
Tenancy by the Entirety: The Marital Shield
New York reserves a highly protective form of ownership exclusively for married couples. Tenancy by the entirety functions similarly to a joint tenancy—when one spouse dies, the surviving spouse instantly owns the entire property without the need for probate. However, this marital tenancy includes a powerful, built-in layer of creditor protection that joint tenancy lacks.
In a tenancy by the entirety, the law views the marriage itself as the single legal entity that owns the property. Because neither spouse owns a distinct fractional share, a creditor who holds a judgment against only one spouse cannot force the sale of the home to satisfy the debt. If a physician faces a malpractice judgment that exceeds their insurance coverage, their primary residence is generally shielded from that creditor, provided the property is held as tenants by the entirety and the spouse is not named in the lawsuit.
This protection is entirely dependent on the marriage. If the couple divorces, the tenancy by the entirety is automatically severed by operation of law, converting immediately into a tenancy in common and eliminating the creditor shield. We often review deeds for couples who purchased real estate before they were legally married. Because they were single at the time of the closing, they took title as tenants in common or joint tenants. Unless they execute a new deed after their wedding to explicitly claim tenancy by the entirety, they completely miss out on this vital statutory protection.
Property titles are stubborn legal instruments. A beautifully structured trust cannot protect a home if the deed is drafted incorrectly, and assuming your real estate will seamlessly transfer to your intended heirs is a risk no prudent owner should take. I recommend pulling the actual recorded deeds to your primary residence and any investment properties to verify exactly how your title is held. If you are uncertain how the specific language on your deed will legally impact your family, schedule a 30-minute deed and beneficiary audit with our office to verify your real estate aligns with your broader estate plan.
