When a Manhattan widow purchases a condominium entirely in her own name, she leaves the closing table feeling absolute financial independence. She does not need to consult a co-owner to renovate the kitchen, nor does she need a second signature to refinance the mortgage. But when she eventually passes away, her children discover the hidden cost of that independence. Because she owned the property exclusively, the condo cannot be sold, transferred, or even properly insured until a Surrogate’s Court judge says so.
Probate.
In real estate law, owning property by yourself is formally known as tenancy by severalty. The term confuses many—it sounds like it involves multiple owners. The word actually derives from the concept of being completely “severed” from all others. You are the sole owner. You hold the deed alone.
During your lifetime, holding property in severalty is the ultimate form of control. You are the sole custodian of the asset. If you want to lease it, borrow against its equity, or sell it outright, the decision is entirely yours. There are no disputes with co-investors and no need to secure a spouse’s consent. But estate planning is rarely about what happens while you are alive. It is about deliberate contingency planning for your absence.
The Estate Planning Trap of Sole Ownership
The moment a sole owner dies, a tenancy by severalty becomes a legal bottleneck. Because there is no joint owner with a right of survivorship—and no trust agreement dictating the next steps—the property lacks an automatic mechanism to pass to the next generation. It is immediately frozen.
If you own a house in Brooklyn as a tenant by severalty and pass away without a will, the property falls subject to the strict rules of our state’s intestacy statutes. Under Estates, Powers and Trusts Law (EPTL) § 4-1.1, your sole ownership is forcefully fractured by the state. If you leave behind a spouse and children, the law dictates that your spouse receives the first $50,000 plus half the remaining estate, while your children split the remainder.
Suddenly, a property cleanly owned by one person transforms into a messy, multi-party tenancy in common. Your surviving family members are forced into a co-ownership arrangement they never asked for, requiring absolute consensus before the property can be liquidated. If one child wants to sell and another refuses, the family may be forced into a costly partition action just to extract their inheritance.
The Surrogate’s Court Reality
Even if you have a properly drafted will leaving the property to a single beneficiary, holding the deed in severalty guarantees a trip to Surrogate’s Court. A will is not a magic document that instantly transfers real estate. The court must formally validate the will and appoint an executor before anyone has the legal authority to sign a new deed.
This introduces the strict procedural requirements of Surrogate’s Court Procedure Act (SCPA) Article 14. Under this statute, the court cannot simply rubber-stamp your will. Every family member who would have inherited if you had died without a will must be formally notified and given an opportunity to object. If a relative is estranged, missing, or uncooperative, the delays multiply.
Once appointed, the executor takes on a strict fiduciary duty to maintain the property. They must secure the premises, winterize the plumbing, and prevent waste. If they fail, the beneficiaries can hold them personally liable. In New York, this administrative process routinely takes nine months to a year. During that window, the property sits in legal limbo. The family must continue paying property taxes, co-op or condo maintenance fees, and insurance premiums—often out of their own pockets—while waiting for letters testamentary. Vacant properties also require specialized, expensive insurance policies. If the real estate market shifts dramatically during those months, the family simply absorbs the financial loss. They cannot sell a property they do not legally control.
Liability and Investment Properties
For families holding investment properties, tenancy by severalty presents another distinct disadvantage: unprotected personal liability. When you hold an income-producing property in your individual name, your personal assets are fully exposed to whatever happens on that property. If a tenant is injured and files a lawsuit exceeding your insurance coverage, your primary residence and personal brokerage accounts are on the line.
We rarely advise high-net-worth individuals to hold significant real estate in severalty. Prudent stewardship requires building a firewall between your personal wealth and your real estate investments. In cases like this, we typically consider transferring the deed to a dedicated limited liability company. This isolates the risk to the specific property, shielding your generational wealth from localized disputes.
Deliberate Stewardship Through Trusts
For primary residences and family vacation homes, the goal of wealth transfer is frictionless stewardship—keeping the assets entirely out of the court system.
Instead of holding a deed in your individual name, we often transition clients toward revocable living trusts. As the trustee of your own trust, you retain the exact same complete, unilateral control over the property that you enjoyed as a tenant by severalty. You can still sell it, live in it, or mortgage it. You lose none of your autonomy.
The critical difference occurs upon your death. Because the trust—not you individually—owns the real estate, the asset bypasses Surrogate’s Court entirely. Your successor trustee can list the property for sale the very next day, or immediately transfer the deed to your chosen beneficiaries. This preserves the financial value of your legacy and spares your family a prolonged, expensive administrative burden.
How your real estate is titled dictates exactly what your family faces when you are gone. Assuming a simple will is enough to protect a property held in severalty is a common, costly mistake. Request a deed review with our office to confirm exactly how your New York properties are currently titled and what that means for your estate plan.
