I often see families in our Manhattan office who are surprised by a piece of paper. A parent passes away, and the children discover that years earlier, their mother added one sibling’s name to the deed of the family home. She probably thought she was making things simpler. Instead, she unintentionally disinherited her other children. Because the house was held in a joint tenancy, it passed directly to the one child on the deed, completely outside the terms of her will. The will said to divide everything equally—but the deed overrode it. The result was not simplicity; it was a family dispute that landed in Surrogate’s Court.
The title to your home is more than a record of ownership. It is a legal instrument that dictates precisely how that asset will be transferred when you are gone. It is one of the most powerful and misunderstood documents in estate planning. The method you choose for holding title can either align with your intentions or completely undermine them.
Three Ways to Hold Title—and Their Consequences
In New York, the language on your deed determines the future of your property. While several ways to hold title exist, most individuals and families use one of three common forms. Each carries significant—and very different—implications for your estate.
First is Tenancy in Common. Here, two or more people own distinct, separate shares of a property. If you own 50% as a tenant in common, your half is yours alone. When you pass away, that share does not automatically go to the other co-owners. Instead, it becomes part of your estate and is distributed according to your will, which means it must go through the probate process. This provides flexibility, but it guarantees a court proceeding for your share of the asset.
Second, and the cause of the conflict I described earlier, is Joint Tenancy with Right of Survivorship (JTWROS). This is what many people imagine when they think of co-ownership. When one owner dies, their interest automatically passes to the surviving joint owner(s). It happens immediately, by operation of law. While this avoids probate for that specific asset, it is a blunt instrument. It supersedes any instructions in your will, can lead to accidental disinheritance, and exposes the property to the creditors, divorces, and legal judgments of every person on the title.
For married couples, New York law provides a third, powerful option: Tenancy by the Entirety. It functions like a joint tenancy with an automatic right of survivorship but adds a crucial layer of creditor protection. The property is considered owned not by either spouse individually, but by the marital unit itself. This means a creditor with a judgment against only one spouse generally cannot force the sale of the home to satisfy that debt. It is a significant protection, but it exists only for married couples and, like JTWROS, dissolves upon divorce.
The Default Rule in New York Law
When a deed is silent on the form of co-ownership, New York law imposes a default. Under New York’s Estates, Powers and Trusts Law (EPTL) § 6-2.2, the presumption is that the owners hold the property as tenants in common. To create a joint tenancy, the deed must include explicit language, such as “as joint tenants with right of survivorship.”
This statutory default prevents the accidental disinheritance of a co-owner’s heirs. But relying on a default is not a strategy. An intentional estate plan requires a deliberate choice, not a legal assumption made on your behalf.
A More Intentional Path: The Trust
For many of our clients, the limitations and risks of direct ownership lead us to a more prudent vehicle: a trust. By transferring the title of your home into a revocable living trust, you separate legal ownership from beneficial use. You—or whomever you name—act as the trustee, managing the property for the beneficiaries, who are typically yourself during your lifetime.
Holding your home in a trust accomplishes several critical goals that other forms of ownership cannot:
- Probate Avoidance: The trust owns the property, not you. When you pass away, there is no need for Surrogate’s Court to oversee the transfer. The successor trustee you appointed simply follows the instructions you laid out in the trust document.
- Control and Flexibility: A trust allows for nuance. You can direct that the home be sold and the proceeds divided, or that a child be allowed to live there for a certain period. You can protect a beneficiary’s inheritance from their future creditors or a divorce. You retain full control to change these terms at any time.
- Incapacity Planning: If you become unable to manage your own affairs, your successor trustee can step in to manage the property for your benefit, without needing a court-appointed conservator.
Stewardship is about making deliberate choices. The deed to your home is one of the most significant legal documents you will ever sign. The names on it matter less than the legal language that follows—language that will echo for a generation.
The first step is often the simplest: locate your current deed. If you are unsure how your property is titled or what the language on that document means for your family, our firm can conduct a deed and title review as part of an initial estate planning assessment.
