A family is at the closing table for their first home in Brooklyn. They are excited, overwhelmed, and focused on the stack of documents in front of them. When the attorney asks how they want to take title to the property, they look at each other. “Joint tenants with right of survivorship” is suggested as the standard for married couples. It sounds simple, so they agree.
No one at that table explains that this choice has profound, often unintended, consequences for their children decades later. The closing is not just the end of a purchase; it is the beginning of a generational asset. The decisions made in that room—often in haste—can either align with your family’s long-term goals or create significant hurdles for the people you love.
The Deed Is a Legacy Document
In my practice, I have seen the aftermath of these moments. A deed is far more than a receipt. It is a legal instrument that dictates control, succession, and stewardship. The names on the deed, and the words that follow, determine what happens to that property when an owner dies. Does it transfer automatically to a co-owner, or does it become part of their estate, subject to the delays and public process of Surrogate’s Court?
New York law recognizes several ways to hold title, each with distinct implications:
- Tenants in Common: Each owner holds a separate, divisible interest in the property. If one owner dies, their share passes to their heirs through their will or, if there is no will, through the state’s intestacy laws. This almost always requires a probate proceeding.
- Joint Tenants with Right of Survivorship (JTWROS): This is what the couple in our example chose. When one joint tenant dies, their ownership interest is extinguished, and the surviving joint tenant owns the entire property. It bypasses probate for the first death, which is its main appeal.
- Tenancy by the Entirety: This is a form of ownership available only to married couples in New York. It functions like a JTWROS, providing an automatic right of survivorship, but with an added layer of creditor protection against the individual debts of one spouse.
The choice is not merely procedural. If your goal is to pass property into a trust for your children or to protect it for a surviving spouse while planning for Medicaid, holding title as joint tenants might be precisely the wrong move. This is why standard residential real estate contracts in New York often contain a notice, in bold-faced type, advising buyers about these different forms of ownership. That notice exists to prompt a deliberate conversation before the ink is dry.
When an Estate Is the Seller
The intersection of real estate and estate law becomes even clearer when a property is sold from an estate or a trust. The seller is a fiduciary—an Executor, Administrator, or Trustee—who has a legal duty to act in the best interests of the beneficiaries.
Before an Executor can list a property, they must be formally appointed by the Surrogate’s Court and receive Letters Testamentary. This court order is the Executor’s proof of authority. Without it, they have no power to sign a contract or a deed. The buyer’s attorney will correctly refuse to close a deal until these documents are presented.
Similarly, a Trustee selling property must act according to the terms of the trust and their fiduciary duties. The powers granted to fiduciaries are extensive but not unlimited. Under New York’s EPTL § 11-1.1, a fiduciary has the power to sell real property, but that power must be exercised prudently. I have seen sales delayed for months because a fiduciary lacked clear authority or failed to follow procedure. A well-drafted will or trust makes this process seamless; a poor one can create a legal and financial quagmire.
The Closing as a Contingency Checkpoint
There is a period—often 60 to 90 days—between signing a real estate contract and the final closing. A lot can happen. What if the buyer or seller becomes incapacitated or dies during this period?
Estate planning provides the necessary contingencies. A durable Power of Attorney allows you to appoint an agent to act on your behalf in financial matters, including signing all documents to complete a real estate closing. Without one, if you were to suffer an accident and become unable to sign, your family would have to petition the court to appoint a guardian. That process is expensive, time-consuming, and public—and it would almost certainly derail the sale.
If a seller dies before closing, their estate must complete the transaction. This brings us back to the need for a clear will and a designated Executor who can step in, get appointed by the court, and finalize the sale. If the buyer dies, their obligation to purchase typically passes to their estate. This can be a burden on a grieving family who may not want or be able to afford the property.
Thinking through these possibilities is not pessimistic. It is prudent planning. Stewardship.
Your home is likely the most significant asset you will ever own. Its purchase or sale should be treated with the same intentionality as the rest of your estate plan. The closing table is not the finish line; it is a critical juncture where decisions about your legacy are formalized. Making those decisions deliberately is one of the greatest services you can provide for your family.
If you are buying or selling property, we can conduct a pre-transaction review of your contract and proposed deed to analyze how it integrates with your existing estate plan and generational goals.
