A client came to my office last month, a successful surgeon who had just purchased a condominium in Manhattan. He was proud of the accomplishment, and rightly so. He held the deed in his name alone. “It’s simple,” he said. “It’s just mine.” He was correct, but what he saw as simple, I saw as a future complication for his children. Owning property in your sole name—what the law calls a tenancy in severalty—is the most straightforward way to hold title. It is also a guaranteed way to send that property into Surrogate’s Court upon your death.
What “Severalty” Means for Your Property
The term “severalty” can be misleading; it sounds like it involves several people. The opposite is true. It derives from the word “severed,” meaning the ownership interest is severed from any other person. You, and you alone, hold the title. This is the default for any unmarried individual buying property. A corporation or an LLC buying a building also holds it in severalty—as a single legal entity.
This contrasts sharply with other forms of ownership in New York.
- Joint Tenancy with Rights of Survivorship: When one owner dies, their share automatically passes to the surviving joint owner(s). No probate required.
- Tenancy by the Entirety: A special form of joint tenancy for married couples, which also includes automatic rights of survivorship and added creditor protection.
- Tenancy in Common: Multiple people own distinct shares of a property (e.g., 60/40 or 50/50). When one owner dies, their share does not go to the other owners. Instead, it goes to their heirs, typically through the probate of their will.
Tenancy in severalty acts like a tenancy in common where you own 100% of the shares. Because there is no co-owner with survivorship rights, the property has no automatic, legally defined path to a new owner upon your death. Its destination is determined by your will—and the will must first be validated by a court.
The Inevitability of Probate for Solely Owned Assets
When an asset has no designated beneficiary or joint owner, it becomes part of the decedent’s probate estate. For real estate held in severalty, this means the property is effectively frozen until the Surrogate’s Court gives the Executor permission to act. The process, governed by the Surrogate’s Court Procedure Act (SCPA), involves filing the will, notifying all interested parties, and formally appointing the Executor. Only then can the Executor manage the property, pay any estate debts, and eventually transfer the deed to the rightful heirs.
This process is not quick, nor is it private. Court filings are public record. It can take months, sometimes more than a year, to complete. During this time, the family can’t sell the property, refinance it, or formally take title. They are in a state of legal limbo, all because the “simple” form of ownership lacked a plan for succession.
Stewardship. That is the goal of a well-crafted estate plan. It means exercising control over your assets not just during your life, but in the transition to the next generation. A tenancy in severalty, on its own, abdicates that control to the court system.
Two Prudent Paths for Sole Property Owners
For my clients who own property in their own name, the conversation turns from the problem of probate to the deliberate act of planning. We do not want to leave the fate of a significant asset to a court schedule. We have two primary tools in New York to create a direct path for succession and maintain family control.
The first and most protective method is transferring the property into a revocable living trust. You transfer the deed from your individual name to your name as trustee of your trust. For all practical purposes, nothing changes for you. You still control the property entirely. You can sell it, mortgage it, or paint the walls any color you wish. But the legal ownership has shifted. Upon your death, the person you named as the successor trustee takes over immediately, without any court intervention. They can manage or distribute the property according to the clear instructions you left in the trust document.
A second, more recent option, is the Transfer on Death Deed (TODD). New York Real Property Law § 240-c allows property owners to name a beneficiary directly on their deed. The document is signed and recorded now, but it only becomes effective upon the owner’s death. It is a simpler instrument than a trust, but also less flexible. It does not provide for alternate scenarios—what if the beneficiary has died, is a minor, or is receiving government benefits? A trust can account for these contingencies; a TODD generally cannot.
The choice between these instruments depends on the family’s specific circumstances, the nature of the assets, and the legacy they intend to build. Both, however, are vastly superior to relying on a will and the public probate process.
If you currently hold title to your home or other real estate in your name alone, your first step is a simple one: locate your deed. Understanding how your property is legally titled is the foundation of any effective estate plan. Once you have it, we can schedule a review to analyze what that means for your family and discuss the instruments that can ensure your legacy passes to them directly and privately.
