When a Brooklyn family loses a parent who held title to a brownstone entirely in his own name, the children often expect a seamless transfer of the property. They assume that because they are the clear heirs, they can simply list the house for sale or move in. Instead, they quickly discover that the next nine to twelve months belong to Surrogate’s Court. The house sits empty, property taxes accrue, and the family is left paying out of pocket to maintain an asset they cannot legally touch. This administrative freeze happens because the property was owned in severalty—a legal classification that frequently catches families off guard when the deed is finally pulled from the safe deposit box.
In my practice, I find that real estate ownership terminology often confuses rather than clarifies. The word “severalty” sounds as though it implies multiple owners—several people. The reality is the exact opposite. The term derives from the concept of being severed or cut off from all others. If you own property in severalty, you own it completely alone. There are no co-owners, no joint tenants, and no partners.
The Double-Edged Sword of Absolute Control
New York law formally recognizes this ownership structure under EPTL § 6-2.1, which outlines estates in severalty alongside joint tenancy and tenancy in common. For the living owner, holding property in severalty offers absolute autonomy. You do not need to consult a co-owner to refinance the mortgage, tear down a detached garage, or sell the property outright. You hold the entire bundle of rights.
Isolation. That is the defining characteristic of severalty. You are isolated from the opinions and interference of others, which is often highly desirable for real estate investors and single homeowners. All rental income belongs exclusively to you. All tax deductions flow entirely to your tax return.
However, this absolute control is inextricably linked to absolute liability. As the sole individual on the deed, you bear the total financial burden of the property. If a delivery worker trips on a cracked sidewalk outside your building and files a personal injury lawsuit, you are the sole target. There is no co-owner to share the legal defense costs or the potential judgment. Your personal assets—your savings accounts, your brokerage accounts, your business interests—are directly exposed to liabilities generated by that specific piece of real estate.
The Probate Bottleneck for Sole Owners
The most severe consequence of severalty ownership emerges not during your lifetime, but after your passing. Estate planning is fundamentally about the deliberate stewardship of assets from one generation to the next. Severalty ownership actively works against a smooth transition.
When property is held jointly with a right of survivorship—such as between spouses—the death of one owner does not trap the real estate. The surviving owner simply files a death certificate, and ownership consolidates automatically by operation of law. The property bypasses the court system entirely.
Property held in severalty does not have a surviving co-owner to catch the title. When you die, the asset legally belongs to a deceased person. Dead people cannot sign deeds, authorize real estate brokers, or sign closing documents. The property is entirely immobilized until a judge in Surrogate’s Court formally appoints an executor or administrator to act on behalf of the estate.
If you leave behind a valid will, your nominated executor must petition the court for Letters Testamentary. If you die without a will, the situation is governed by EPTL § 4-1.1, New York’s statute of descent and distribution. Under intestacy, the state dictates exactly who inherits the property. In either scenario, the legal process takes months. During this administrative delay, the property requires ongoing financial stewardship. The mortgage must be paid. The heating system must be maintained to prevent frozen pipes. Insurance premiums must be kept current. If your bank accounts were also held in severalty, they are similarly frozen, forcing your grieving family to cover these carrying costs from their own pockets until the estate is opened.
Transitioning Out of Severalty for Legacy Stewardship
Understanding the limitations of severalty ownership is the first step in prudent generational planning. We rarely advise clients to hold highly appreciated real estate in their individual names precisely because of the probate delays and liability exposures it creates.
To preserve the control that makes severalty attractive while eliminating the probate bottleneck, we typically look to trust-based planning. By executing a new deed that transfers the property from your individual name into a Revocable Living Trust, the trust becomes the sole owner of the real estate.
As the primary trustee of your own revocable trust, you retain the exact same unfettered decision-making power you enjoyed before. You can still sell the property, refinance it, or rent it out. But from an estate planning perspective, the legal reality has profoundly shifted. Because a trust is a distinct legal entity, it does not die when you do. Upon your passing, your designated successor trustee immediately steps into your role. They have the immediate legal authority to list the property for sale or transfer it to your beneficiaries without waiting a single day for Surrogate’s Court approval.
For individuals holding commercial real estate or multi-family rental properties, we often structure ownership through a Limited Liability Company (LLC) rather than individual severalty. The LLC holds title to the property, shielding the owner’s personal assets from premises liability, while the owner’s living trust holds the membership interests in the LLC, bypassing probate.
Reviewing Your Real Estate Titles
Ownership structure is not a mere administrative detail; it dictates exactly what your family will face when they eventually inherit your assets. Prudent estate planning requires aligning the names on your deeds with the contingency plans in your legal documents. Assuming that a will alone is sufficient to protect a property held in severalty is a common, and often expensive, miscalculation.
Locate the recorded deed for your primary residence or investment property. If your name appears entirely alone on the title, schedule a 30-minute deed and title review with our office to determine if transferring the property to a living trust is necessary to protect your family from the delays of Surrogate’s Court.
