A client of mine, a successful entrepreneur, once bought her first significant piece of real estate—a brownstone in Brooklyn—entirely on her own. The deed listed only her name. For her, this was the ultimate symbol of independence. For an estate planning attorney, it was a future problem for her family.
This form of ownership is known as holding title “in severalty.” It’s an archaic term for a simple concept: sole ownership. One person, one entity, one name on the deed. During your lifetime, it gives you absolute authority. You can sell the property, refinance it, or gift it to a child without needing anyone else’s signature. This control is appealing. But control in life becomes a costly complication after death.
The Illusion of Simplicity
Many people assume sole ownership is the simplest way to hold real estate. There are no partners to consult, no co-owners to disagree with. The decision-making is clean and direct. If you are single, or if you purchase a property with assets that are solely yours, owning it in severalty seems like the default choice.
Compared to joint ownership structures—like joint tenancy with rights of survivorship or tenancy by the entirety for married couples—severalty ownership appears straightforward. Those other forms have built-in succession plans. When one joint owner dies, their interest automatically passes to the surviving owner, bypassing the court system. Ownership in severalty has no such mechanism. It stands alone.
That solitude is its greatest weakness from a legacy perspective. The clean authority it provides during life vanishes the moment the owner dies, leaving the property in a state of legal limbo until a court intervenes.
When Surrogate’s Court Becomes the Co-Owner
When a New York resident dies owning real estate in severalty, that property does not automatically pass to their children or a named heir. Instead, it becomes a probate asset. The property is effectively frozen and falls under the jurisdiction of the Surrogate’s Court.
Probate. The process is public, often takes nine months to a year or more, and can be expensive. Your chosen executor must petition the court to be officially appointed, an inventory of your assets must be filed, creditors are given a period to make claims against the estate, and only then can the property be legally transferred to the beneficiaries named in your will.
If you die without a will, the situation is worse. The distribution of your home will be dictated by New York’s intestacy statute, EPTL § 4-1.1. This law sets out a rigid hierarchy of who inherits your property. The state—not you—decides who gets your home. It might be your spouse and children, just your children, or even distant relatives you have never met. Your personal wishes, if never formalized in a will, are irrelevant.
An Intentional Approach to Property Stewardship
True stewardship of your assets requires a deliberate plan. The goal is to avoid court intervention and ensure a seamless transition of your legacy to the people you choose. For real estate, one of the most effective tools for this is a revocable living trust.
Here’s how it works: We create a trust document that names you as the trustee during your lifetime. Then, we prepare and file a new deed that transfers the property’s title from your individual name to the name of your trust. You lose nothing. You still have complete control—you can sell, refinance, or manage the property just as before. The only difference is the name on the deed.
But that one difference is everything. Upon your death, the property is not owned by you personally, so it is not subject to probate. Your designated successor trustee—a trusted child, friend, or professional fiduciary—steps in immediately. They can manage or distribute the property according to the private instructions you left in your trust document, without court filings or delay.
This is the essence of intentional planning. It is about structuring your affairs so that your legacy is a blessing to your family, not a burden to be sorted out in court.
The starting point for responsible stewardship is understanding what you own and how you own it. If you are unsure how your real estate is titled, a prudent first step is to locate your deed. We can then review your property titles to assess your family’s exposure to the probate process and discuss more deliberate ownership structures.
