A mother adds her eldest son to the deed of her Brooklyn brownstone. She sees it as a simple way to transfer the property when she’s gone. Her will, drafted years earlier, is clear: all her assets, including the house, are to be divided equally among her three children. When she passes, the family discovers a conflict. The will says one thing, but the deed says another. The question for Surrogate’s Court is not what the mother intended, but what the law requires.
Here, the law is unambiguous. The son on the deed inherits the entire property. The will is irrelevant. I see this heartbreaking scenario often in my practice, and it stems from a misunderstanding of how different forms of property ownership function.
The Unbreakable Rule of Survivorship
Joint tenancy—specifically, a “joint tenancy with right of survivorship”—is a form of co-ownership that operates outside of a will. It contains an automatic inheritance mechanism. When one joint tenant dies, their interest in the property is extinguished, and the surviving joint tenant automatically absorbs that interest. The property never enters the deceased’s probate estate and is therefore not subject to the terms of their Last Will and Testament.
Think of it as a contract embedded in the property deed. This contract takes precedence over any instructions you might leave in a will. At the moment of death, there is nothing left of your ownership interest for your will to control. The transfer to the survivor is immediate and absolute. This is why the mother’s wish to divide the home among her three children could not be honored—legally, the brownstone was no longer hers to give away.
Many people use this tool thinking it’s a clever way to avoid probate. While it does accomplish that, it’s a blunt instrument that can lead to devastating consequences, including accidentally disinheriting loved ones.
How New York Law Views Co-Ownership
New York law does not presume co-owners want to create a right of survivorship. It presumes the opposite. Under Estates, Powers and Trusts Law (EPTL) § 6-2.2, any conveyance of property to two or more people creates a “tenancy in common” unless the deed expressly declares it to be a “joint tenancy.”
This distinction is critical. As a tenant in common, you own a distinct, separate share of the property. You can sell, mortgage, or—most importantly—bequeath your share to whomever you choose in your will. Your portion becomes part of your estate. A joint tenancy must be created deliberately, with specific legal language like “as joint tenants with right of survivorship.”
This statutory default exists to protect the testamentary freedom of property owners. When individuals intentionally create a joint tenancy, they choose to override that freedom. It is a choice with rigid, often irreversible consequences.
Restoring Your Intent: Alternatives to Joint Tenancy
If the goal is to pass property to specific beneficiaries while maintaining control, joint tenancy is often the wrong tool. It sacrifices precision for simplicity. A deliberate estate plan offers far better ways to ensure your legacy is managed as you intended.
Tenancy in Common
The simplest alternative is a tenancy in common. If the mother in our opening story had owned the home with her son as tenants in common, her one-half interest would have passed through her estate. Her will would then control its distribution, allowing it to be shared among all three children as she wished. This structure preserves the power of your will.
Revocable Living Trusts
For more sophisticated stewardship, a revocable living trust is often the most prudent vehicle. By placing the property into a trust, you separate legal ownership (held by the trustee) from beneficial enjoyment (held by you, during your lifetime). You can name yourself as the trustee and retain full control.
Your trust document then acts as a detailed instruction manual for what happens upon your death. It can specify that the property be sold and the proceeds divided, that one child be given the right to buy out the others, or that it be held for the benefit of your grandchildren. This approach avoids probate while providing clarity and control that a simple deed cannot. It ensures your wishes are carried out, not undermined by a boilerplate ownership structure.
Property ownership is a cornerstone of generational wealth. How you hold title is as important as the asset itself. What seems like a convenient shortcut can easily dismantle a carefully considered legacy.
If you own real estate with another person, the first step is to locate and review the deed. We can then analyze whether that ownership structure aligns with your family’s long-term goals or if a trust would provide more faithful stewardship of your assets.
