A client came to my office last month. His mother had owned her Brooklyn brownstone outright for 40 years. The deed was clean—just her name. He assumed that transferring the title after her passing would be a simple matter of paperwork. He was wrong.
Because she held the property “in severalty”—a legal term for alone—the entire asset was now frozen as part of her estate. Its future would be decided by the Kings County Surrogate’s Court. His inheritance, and the family home, was now on the court’s timeline, not his. His situation is common. It begins with a misunderstanding of what sole ownership truly means for a legacy.
The Illusion of Simplicity
On the surface, ownership in severalty is the most straightforward way to hold title to real estate. The word itself comes from “severed,” meaning the ownership is severed from any other person. If you are a single person buying a home, this is likely how your deed is written. It grants you absolute control. You can sell it, mortgage it, or paint it any color you wish without needing anyone else’s permission. In life, this autonomy is efficient.
In death, that efficiency vanishes. This is the paradox of severalty. The absolute control you enjoy terminates instantly upon your passing. The property does not automatically go to your children or a named beneficiary. Instead, it becomes a probate asset, subject to the authority of the court, the claims of potential creditors, and the formal process of estate administration.
Other forms of ownership work differently. A married couple, for instance, often owns property as “joint tenants with rights of survivorship.” When one spouse dies, the other automatically becomes the sole owner. No court is involved. The property passes outside of the will. Ownership in severalty offers no such shortcut. The will only serves as a set of instructions for the probate court—it does not bypass it.
Sole Ownership and the Surrogate’s Court
When a property owned in severalty enters an estate, the executor named in the will—or an administrator appointed by the court if no will exists—must begin a court proceeding. The court proceeding catches many families by surprise. They expect a handover; what they get is a lengthy legal process.
The entire process is governed by the New York Surrogate’s Court Procedure Act (SCPA). Under SCPA Article 14, for instance, a will must be formally “admitted to probate.” This requires petitioning the court, formally notifying all interested parties—including relatives who may have been disinherited—and giving them an opportunity to object. Any challenge, valid or not, can add months or even years of delay and significant legal expense.
During this period, the property is in a state of limbo. It cannot be sold or distributed without the court’s permission. The estate must continue to pay for its upkeep, property taxes, and insurance, all while the beneficiaries wait. What was intended as a core asset of a family’s legacy becomes a source of cost and frustration. It is a public process, and it moves at the speed of bureaucracy.
Intentional Ownership: Beyond Severalty
The challenges posed by ownership in severalty are not unavoidable. They are, however, a direct result of a lack of deliberate planning. The alternative is to treat property ownership not just as a purchase, but as an act of stewardship for the next generation.
For many of my clients, the most effective tool for this is a revocable living trust. By deeding the property from your individual name to the name of your trust, you change its legal status without sacrificing control. You can act as the trustee, managing the property exactly as you did before. You can sell it, refinance it, or continue to live in it. Nothing changes in your day-to-day life.
The critical difference occurs upon your death. Because the trust—not you—owns the property, it does not become a probate asset. Your designated successor trustee immediately steps in and can manage or distribute the property according to the clear instructions you left in the trust document. The process is private, immediate, and requires no intervention from the Surrogate’s Court.
Stewardship. It’s about making an intentional choice to structure your assets in a way that serves your family’s future, rather than leaving them to a default legal process that was never designed with their well-being in mind.
The name on a deed seems like a simple fact, but it carries immense weight for your legacy. If you own New York real estate in your name alone, the first step is to understand how that asset will be handled when you are gone. I invite you to schedule a review of your current property deeds with our firm, where we can map out the path your assets will take and identify any potential probate challenges.
