I once met with two brothers who had inherited their parents’ Brooklyn brownstone decades ago. For thirty years, they owned it together, paid the taxes together, and assumed that if one of them passed away, the other would simply become the sole owner. But when the older brother died suddenly, the surviving brother discovered a hard truth in the fine print of the deed. They owned the property as “tenants in common.” This meant his brother’s half didn’t automatically pass to him. Instead, it became part of his brother’s estate, destined for a nine-month journey through Kings County Surrogate’s Court.
This is one of the most common and painful misunderstandings I see in my practice. People believe the word “joint” on a deed or bank account is a magic wand that bypasses the probate process. It isn’t. How an asset is titled is a deliberate legal choice with profound consequences for the family you leave behind. The distinction determines whether your property passes seamlessly to a co-owner or becomes entangled in a court proceeding.
The Two Words That Change Everything
In New York, joint ownership of real property primarily takes two forms. The difference between them dictates the asset’s path after your death.
The first, and what most people think of as joint ownership, is Joint Tenancy with Right of Survivorship (JTWROS). The key phrase here is “right of survivorship.” It means that when one owner dies, their ownership interest is automatically extinguished, and the surviving joint tenant (or tenants) instantly absorbs that share. The asset does not enter the deceased’s estate and is not subject to the terms of their will. It passes outside of probate, directly to the survivor by operation of law. This is a powerful tool, often used by married couples for their primary residence or a joint bank account.
The second form is Tenancy in Common (TIC). This is the default form of co-ownership for unmarried individuals unless specified otherwise. Under a TIC, each owner holds a distinct, separate share of the property. It might be 50/50, or it could be divided differently. When a tenant in common dies, their individual share does not go to the other owners. It becomes an asset of their estate, to be distributed according to their will or, if they have no will, by the state’s intestacy laws. This was the situation the two brothers faced—the surviving brother now co-owned his family home with his brother’s estate, and eventually, his brother’s heirs.
New York Law’s Default Position
Many clients are surprised to learn that New York law actually favors Tenancy in Common. According to Estates, Powers and Trusts Law (EPTL) § 6-2.2, any conveyance of property to two or more people is presumed to create a tenancy in common “unless an express declaration is made in the disposition that they are joint tenants.”
What does this mean in practical terms? It means you must be intentional. If you and a sibling, partner, or business associate intend to create a right of survivorship, the deed or title document must explicitly state “as joint tenants with right of survivorship.” Without those specific words, the law assumes you wanted your share to go to your own heirs, not your co-owner. This statutory default is designed to protect your legacy and direct your assets to your chosen beneficiaries—but it can lead to unintended consequences if the titling doesn’t match your actual wishes.
Beyond the Deed: Bank and Brokerage Accounts
This principle extends beyond real estate. Joint bank accounts and brokerage accounts also have titling rules that determine their fate. A standard joint account usually carries the right of survivorship, but it’s crucial to confirm this with the financial institution.
Financial accounts also offer other ways to bypass probate, such as Payable-on-Death (POD) or Transfer-on-Death (TOD) designations. These allow you to name a specific beneficiary who will receive the account’s assets upon your death without any court involvement. This can be a straightforward way to handle liquid assets, but it requires a deliberate review. An old account with an ex-spouse still listed as the TOD beneficiary can create significant legal and family conflict down the line.
Stewardship. It’s about more than just signing a will. It’s about ensuring every asset—from your Manhattan co-op to your investment portfolio—is titled with clear, deliberate intent. The wrong titling can unravel even the most carefully drafted estate plan, forcing your family into the court system you wanted them to avoid.
The first step is understanding what you actually own and how you own it. Before we can build a plan for the future, we must have a clear picture of the present. If you are unsure how your major assets are titled, I suggest you gather the deeds and most recent account statements. A prudent review of these documents can identify which assets are properly structured and which may present a challenge for your heirs.
