A family in Brooklyn calls my office. Their mother recently passed away, and while she left a will stating her three children should inherit her brownstone equally, they’ve discovered a major problem. The deed was in her name alone. The will doesn’t magically transfer the title—it only gives the executor the right to petition the Kings County Surrogate’s Court to do so. The family thought they were inheriting a home; instead, they’ve inherited a nine-month probate case.
I see this confusion often. Many families are frustrated to learn that real estate does not pass as easily as other assets. The single most important factor determining what happens to a property after the owner’s death isn’t the will. It’s the deed.
How the Deed Dictates the Transfer
Before we discuss a will or a trust, we must look at the title. The deed is the controlling document, and how it’s worded determines the path the property takes. In New York, there are several common ways to hold title, and each has a profoundly different outcome for your family.
Sole Ownership: This is the situation the Brooklyn family faced. When a property is owned by one person in their individual name, it becomes part of their probate estate upon death. That property is subject to the jurisdiction of the Surrogate’s Court, regardless of what the will says. An executor must be appointed, creditors must be notified, and only after all procedures are followed can the property be transferred to the heirs. This process is public, often lengthy, and can be expensive.
Joint Tenants with Rights of Survivorship (JTWROS): When two or more people own property this way, the transfer is automatic. Upon the death of one owner, their share passes to the surviving owner(s) by operation of law. The property does not go through probate. This is a common way for married couples to own a home, but it can be used by any two or more individuals. It is a simple tool, but it lacks nuance—the last survivor owns the property outright and can do with it as they please, which may not align with the original owner’s generational goals.
Tenants in Common: This form of co-ownership is different. Each owner holds a distinct, separate share of the property. When one owner dies, their share does not automatically go to the other owners. Instead, their portion becomes part of their probate estate and is passed on according to their will or the laws of intestacy. This often comes as a surprise to surviving co-owners, who may find themselves sharing ownership with their deceased partner’s distant relatives.
When There Is No Will: New York Intestacy Law
What happens when someone dies with property in their sole name and without a will? This is called dying “intestate,” and New York law provides a rigid hierarchy for who inherits. The Estates, Powers and Trusts Law (EPTL) § 4-1.1 lays out the order of priority. It’s a formulaic, one-size-fits-all statute that almost never reflects the deceased’s actual relationships or wishes.
For example, if the deceased had a spouse and children, the spouse inherits the first $50,000 of the estate plus one-half of the remainder, with the children inheriting the rest. If there is no spouse but there are children, they inherit everything equally. The statute continues down the family tree—to parents, then siblings, and so on. A long-term unmarried partner receives nothing. A favorite niece or a loyal friend receives nothing. The law is impersonal.
Relying on the state’s default plan means ceding all control. A court-appointed administrator, who may be a stranger to the family, will be put in charge of the estate, and the fate of the property will be decided by statute, not by a deliberate plan.
A More Intentional Path: The Revocable Living Trust
For my clients whose real estate is a significant asset, neither probate nor joint ownership provides the control and protection they require. A more prudent approach is to place the property into a revocable living trust.
When you transfer your real estate into a trust, you are not giving up control. As the grantor, you typically name yourself as the trustee and continue to manage the property just as you always have. The difference is a legal one: the property is now owned by the trust, not by you as an individual. Because the trust owns the property, it avoids probate at your death.
Instead, the successor trustee you named in the trust document steps in immediately. They have the authority to manage or distribute the property according to the specific, private instructions you left behind. This process is efficient, private, and avoids the costs and delays of Surrogate’s Court. It allows you to create a deliberate, generational plan for your most valuable assets. Stewardship.
A smooth transition of real estate depends entirely on proactive planning. The structure of ownership is a choice, and the one you make today will determine the burden or benefit you leave for your family tomorrow.
If you are a property owner in New York and are uncertain how your title is held, the first step is to locate and review your deed. My firm can then assist with a Deed and Title Review to analyze your current ownership structure and discuss whether it aligns with your long-term goals for your family.
