A client once came to my office after inheriting his mother’s Brooklyn brownstone—the house he grew up in. He assumed that because the house was now “his,” he could simply write a will leaving it to his own daughter. He was right, but he was also missing a critical step. The simple act of inheriting a property does not automatically grant you the power to pass it on. The power comes from the transfer of title, and until that is formally completed, the property remains in a legal limbo tied to the deceased’s estate.
The question isn’t whether you can will an inherited property. The better question is, when does that inherited property become fully yours to give away?
Ownership is the Prerequisite for Gifting
When a person passes away, their assets don’t instantly teleport to their heirs. They must pass through an administrative process—either probate in Surrogate’s Court or a trust administration. During this period, an executor or trustee manages the estate’s assets. As a beneficiary, you have a vested interest, but you do not yet have legal title.
Once the estate administration is complete, the property’s title is formally transferred to you via a new deed. The moment that deed is recorded in your name, you become the legal owner. From that point forward, the property is an asset like any other you own. You can live in it, sell it, mortgage it, or—importantly—include it in your own will. This authority is fundamental to New York law. EPTL § 3-1.1 gives every legally competent adult the right to dispose of their real and personal property by will. Once you own it, you can direct its future.
However, the nature of your ownership dictates the extent of your power. Stewardship requires understanding precisely what you control.
How Title Dictates Your Power to Bequeath
Not all ownership is absolute. When you inherit real estate, particularly alongside other family members, the way the title is structured is the single most important factor in determining your ability to pass it on. This is where many families encounter unexpected conflict and confusion.
There are three common scenarios we see in our practice:
- Sole Ownership (Fee Simple): This is the most straightforward situation. If you are the only heir to the property and the deed is transferred into your name alone, you hold it in “fee simple.” You have complete and total authority over it. You can leave the entire property to whomever you designate in your will without restriction.
- Tenants in Common: Siblings often inherit a property together. In New York, the default form of co-ownership is “tenants in common.” If you and your two siblings inherit a house this way, you each own a distinct one-third share. Your share is your property. You can sell it, and you can leave your one-third interest to your own children or any other beneficiary in your will. Your siblings cannot prevent you from doing so.
- Joint Tenants with Right of Survivorship: This form of title operates very differently. The key phrase is “right of survivorship.” If you own property this way with another person, your interest automatically passes to the surviving joint owner(s) upon your death. It happens by operation of law and completely bypasses your will. You cannot will your share to someone else, because your ownership interest legally extinguishes at the moment of your death. While a useful tool in some marital situations, it can create unintended consequences when used for generational transfers.
The Life Estate: A Limited Inheritance
There is another layer of complexity we must consider: the life estate. A person might write a will that gives their spouse the right to live in the family home for the remainder of the spouse’s life, but directs that upon the spouse’s death, the house must pass to their children from a previous marriage. In this case, the surviving spouse inherits a “life estate,” not the property itself.
The spouse is a custodian, not the ultimate owner. They have the right to use and occupy the property, but they cannot sell it or leave it to someone else in their will. Their ownership is temporary. Upon their passing, the property goes to the “remaindermen” designated in the original owner’s will. This is an intentional and powerful tool for ensuring a property stays within a bloodline, but it means the person inheriting the life estate has no power to alter that plan.
Understanding these distinctions is not about paperwork. It is about fulfilling your duties as a steward of your family’s legacy. The deed, the will, and the probate court filings all work together to define the boundaries of that stewardship.
If you have inherited property or expect to in the future, your first obligation is to understand the exact nature of your ownership. Before you can make deliberate plans for the next generation, you must have clarity on your legal rights today. A prudent first step is to have the deed and the original will reviewed. We can schedule a session to analyze these documents and map out how this asset fits into your own estate plan.
