A client came to my office last year, deed in hand. His mother had passed away, and as executor of her estate, he was preparing to sell her home in Queens. The sale was to provide for the family and fund his own children’s education. He thought the deed was all he needed. But when the buyer’s attorney ran a title search, the process stopped. A contractor’s lien from a kitchen renovation in 1998—one my client knew nothing about—was still attached to the property. The sale was in jeopardy, and the family’s plans were suddenly uncertain.
This is a situation we see too often. Many people believe that possessing the physical deed to a property is the same as having clear ownership. It is not. The deed is an instrument of transfer. The title is the legal concept of ownership—the entire history of rights, claims, and encumbrances tied to that piece of land. Understanding this distinction is the first step in true stewardship of your family’s most significant asset.
What the Deed Doesn’t Tell You
A deed is a snapshot in time. It documents a transfer from a seller (grantor) to a buyer (grantee). It does not tell you if the grantor had the absolute right to sell it. It does not reveal an unpaid tax bill from a decade ago, a utility easement granted to the city, or a lien filed by a lender. These issues, known as “clouds” on the title, can derail a future sale and create enormous difficulty for your heirs.
In New York, a deed must be properly recorded to be valid against certain third-party claims. Under New York’s Real Property Law § 291, an unrecorded conveyance of real property is void against a subsequent purchaser who buys the property in good faith for value. Recording the deed with the county clerk puts the world on notice of your ownership. But even a recorded deed does not automatically cleanse a title of its past problems.
That is the job of a title search—a forensic examination of public records. It is not a formality. It is a crucial step in verifying that the chain of ownership is unbroken and that no outstanding claims can threaten your family’s rights to the property.
The Different Ways to Hold Title—And Why It Matters
How you own your property is as important as owning it free and clear. The form of ownership dictates what happens to the property when you pass away, how it is treated in a divorce, and whether it is exposed to creditors. In our practice, we analyze the ownership structure as a core component of your generational plan.
There are several common ways to hold title:
- Sole Ownership: One person holds the title. Upon death, the property must pass through probate in Surrogate’s Court before it can be transferred to heirs.
- Tenants in Common: Two or more people own distinct shares of the property. If one owner dies, their share does not automatically go to the other owners. It passes to their heirs, usually through probate.
- Joint Tenants with Rights of Survivorship (JTWROS): Two or more people own the property together. When one owner dies, their share automatically passes to the surviving owner(s), avoiding probate for that transfer. This sounds simple, but it can unintentionally disinherit other beneficiaries.
- Tenancy by the Entirety: A form of joint ownership available only to married couples. It offers creditor protection and automatic rights of survivorship, but it dissolves upon divorce.
Each of these has profound implications for your estate. Choosing JTWROS might seem like an easy way to avoid probate, but it can create unintended consequences. For instance, adding a child to your deed as a joint tenant exposes your home to their potential creditors or divorce proceedings. It is rarely the most prudent course of action.
A Trust Is an Intentional Act of Stewardship
For many families I represent, the most effective way to hold title is not in their individual names, but in the name of a trust. When a property is titled to a properly drafted revocable or irrevocable trust, you create a clear succession plan that bypasses the time, expense, and public nature of Surrogate’s Court.
Transferring your Manhattan apartment or family home into a trust is a deliberate act. It involves signing a new deed that conveys the property from you, as an individual, to yourself as the trustee of your trust. Once the property is held by the trust, the trust document—not your will—governs its future. This allows for a seamless transition of control to your chosen successor trustee upon your death or incapacity, without court intervention.
This is what I mean by stewardship. It is the shift from passively holding a deed to intentionally structuring ownership to protect your legacy, provide for your family, and ensure the assets you worked a lifetime to build are preserved for the next generation.
If you have not reviewed your property deed in years, or if you are unsure how your title is held, the prudent first step is to locate the document. We often begin our work with clients by reviewing their deed and title insurance policy to assess how their largest asset fits into their overall estate plan.
