A client, a successful entrepreneur, recently purchased a commercial building in Manhattan. She was the sole buyer, and the deed listed only her name. “It’s simple,” she told me. “I own it outright.” She was correct about her control during her lifetime, but she overlooked a critical detail about what happens after. When a single individual or a single entity—like an LLC or a trust—holds title to real property, the law calls this “tenancy in severalty.” The name is misleading; it has nothing to do with tenants who rent. It comes from the word “severed,” meaning the ownership is severed from any other person.
This form of ownership provides absolute control. You can sell the property, mortgage it, or lease it without needing anyone else’s signature. For a business owner or a single individual, this seems ideal. But simplicity during life can create significant complications for your legacy. The moment you pass away, that solely owned property becomes a probate asset. It is frozen, and your family cannot touch it until the New York Surrogate’s Court says so.
The Double-Edged Sword of Absolute Control
The core feature of tenancy in severalty is undivided ownership. Unlike joint tenancy with rights of survivorship, where the property automatically passes to the surviving owner, or tenancy in common, where multiple parties own distinct shares, severalty gives one owner complete authority. This is the default form of ownership for any unmarried person buying property alone.
This control is powerful. You can decide to leave the property to a child, a friend, or a charity in your will. You have the freedom to structure your legacy as you see fit. However, this freedom is bound by one condition: the will must be validated by the court through the probate process. Your executor must petition the Surrogate’s Court, notify all interested parties, gather assets, pay creditors, and only then—months or even years later—can they finally transfer the deed to your chosen beneficiaries.
This court process is public, often costly, and always time-consuming. For a grieving family, it adds enormous stress. The “simple” ownership that felt so straightforward during your life becomes a complex legal proceeding for the people you leave behind.
When There Is No Will: The State’s Plan for Your Property
The situation becomes more complicated if a person who owns property in severalty dies without a will—a scenario we call dying “intestate.” When this happens, you don’t get to decide who inherits your property. The state of New York decides for you.
The rules for intestate succession are laid out in the Estates, Powers and Trusts Law (EPTL). Specifically, EPTL § 4-1.1 dictates a rigid hierarchy of inheritance. If you have a spouse and children, they share the property. If you have no spouse but have children, they inherit everything. If you have no spouse or children, it goes to your parents, then your siblings, and so on. The law makes no exceptions for a strained family relationship or a close friend you considered family. The statute is the final word.
Imagine owning a brownstone in Brooklyn that you intended for your niece who cared for you in your final years. If you die without a will and have a living sibling—your niece’s parent—the law will give the property to your sibling, not your niece. Your intentions, unless formalized in a valid will or trust, are legally irrelevant. Tenancy in severalty, combined with intestacy, can easily lead to outcomes that are the exact opposite of what you would have wanted.
A More Intentional Structure for Your Legacy
Holding title in your individual name is a choice, but it is often not the most prudent one from a stewardship perspective. For many of our clients, a more deliberate approach involves placing real estate into a revocable living trust.
When you transfer your property’s deed into a trust, you are no longer the owner in severalty. The trust is. You, as the trustee, retain full control over the property during your lifetime—you can still sell it, refinance it, or live in it just as before. The difference is what happens upon your death. Because the trust owns the property, it does not have to go through probate. The successor trustee you named in the trust document simply takes over management and distributes the asset according to your explicit instructions.
This transition is private, efficient, and can be accomplished without court intervention. It ensures the person you want to benefit from your property does so without unnecessary delay or expense. It is the difference between leaving behind a clear plan and leaving behind a court case.
The way your name appears on a deed seems like a minor detail, but it has generational consequences. It dictates whether your family will face the Surrogate’s Court or be able to administer your legacy with clarity and privacy. A prudent estate plan always begins with a careful review of how your assets are actually titled.
A foundational step is to gather the deeds for any real estate you own. Understanding precisely how you hold title is the necessary starting point for a conversation about protecting your assets and providing for your family. Once you have those documents, we can review them and discuss a structure that truly reflects your intentions.
