A client of ours, a successful entrepreneur, recently purchased a commercial building in Manhattan for her growing business. As we reviewed the closing documents, she pointed to a phrase on the deed: “as tenant in severalty.” She asked me, “Russel, what does this actually mean for me and for the legacy I’m building?” It’s a question my firm addresses often, because how you hold title to property is not just a line of legal text—it’s a foundational piece of your entire estate plan.
The term itself can be misleading. “Severalty” sounds like it involves several people, but it means the opposite. It’s derived from the word “severed,” indicating that this ownership is severed from all other individuals. When you own property as a tenant in severalty, you are the sole, exclusive owner. This applies whether you are an individual or a single legal entity, like a corporation or an LLC.
For an unmarried individual buying a home or a business owner acquiring property through their company, tenancy in severalty is the most common form of ownership. You have absolute control. You can sell it, mortgage it, or lease it without needing anyone else’s signature. But this total control during your lifetime has profound implications for what happens after.
How Sole Ownership Intersects with Your Estate
The defining feature of tenancy in severalty from an estate planning perspective is the absence of an automatic transfer upon death. Unlike joint tenancy with rights of survivorship, where a surviving co-owner automatically inherits the property, sole ownership works differently. The property does not bypass your estate; it becomes a primary asset of your estate.
This means the property’s future is dictated by your will. If you have a valid will, the executor you appointed will manage the property through the probate process in Surrogate’s Court and distribute it to the beneficiaries you named. The property will be subject to the claims of creditors and any estate taxes before it can pass to your heirs. This process provides for an orderly transfer, but it is neither private nor immediate.
If you die without a will—what the law calls dying “intestate”—the consequences are severe. Without your written instructions, the distribution of your assets is governed by state statute. Specifically, New York’s Estates, Powers and Trusts Law (EPTL) § 4-1.1 dictates who gets what. The law provides a rigid hierarchy of relatives, and the outcome may not align with your wishes. A distant relative you haven’t spoken to in years could inherit over a close friend or partner you considered family.
Contrasting Severalty with Other Forms of Ownership
The way you hold title is a deliberate choice with long-term consequences. It is best understood by comparing it to the other forms of ownership available in New York.
Tenancy in Common: Two or more people own property together, but without a right of survivorship. Each co-owner holds a distinct, transferable share. When one owner dies, their share does not go to the other owners. Instead, like with tenancy in severalty, it passes to their own heirs through their estate and is subject to probate.
Joint Tenancy with Rights of Survivorship (JTWROS): This is most common among married couples. The co-owners hold an undivided interest in the entire property. The key phrase is “rights of survivorship.” When one joint tenant dies, their interest in the property is extinguished, and the surviving joint tenant automatically becomes the sole owner. This transfer happens outside of probate, a major advantage in simplifying estate administration.
Choosing tenancy in severalty is an intentional act. It grants you ultimate control, but it also places the full weight of planning for that property’s succession squarely on your shoulders. It makes having a well-drafted will or a properly funded trust an absolute necessity.
Is a Trust a Better Vehicle for Solely Owned Property?
For many of my clients who own property in their own name, holding the title within a revocable living trust is a more prudent strategy. By transferring the deed from yourself as an individual to yourself as the trustee of your trust, you retain complete control during your lifetime. You can still sell, refinance, or do whatever you wish with the property.
The critical difference occurs upon your death. Because the property is owned by the trust, not by you personally, it is not subject to the probate process. The successor trustee you named in the trust document can step in immediately to manage or distribute the property according to your instructions. This approach offers privacy, efficiency, and can save your family significant time and expense. It transforms the property from a potential probate headache into a seamless part of your legacy.
Understanding these distinctions is the first step toward intentional stewardship of your assets. The language on a deed is more than a formality; it is a directive that can shape your family’s future for generations.
If you hold New York real estate as a tenant in severalty, the next prudent step is a review of your deed alongside your will or trust. We can examine these documents together to confirm that the legal structure of your ownership aligns with your intentions for the property and for the people you care about.
