A client of ours, a successful architect, recently purchased a brownstone in Brooklyn. She is unmarried and bought it with her own funds. On the deed, her name stands alone. This is the simplest, most straightforward form of property ownership, yet it has profound consequences for her estate. In the language of New York property law, she holds the title “in severalty.”
The term can be confusing. It sounds like it involves several people, but it means the exact opposite. The root word is “sever.” Ownership is severed from any other person. The title is held by one person—or one legal entity—exclusively. This owner has absolute control to sell, mortgage, or transfer the property without needing anyone else’s consent. But this absolute control during life creates a critical question after death: what happens next?
Sole Ownership and the Path to Probate
When an individual owns property in severalty, that asset becomes part of their probate estate upon their death. There is no automatic transfer, as there would be with certain forms of joint ownership. The property is frozen, subject to the authority of the New York Surrogate’s Court.
Here’s what that means in practice. The executor named in the deceased’s will—or an administrator appointed by the court if there is no will—must petition the court to begin the probate process. They are then tasked with managing the property, paying any associated debts or taxes from the estate’s assets, and ultimately distributing it according to the will’s instructions or state law. This process is public, can be time-consuming, and invites potential challenges.
For my architect client, this means her brownstone would not pass directly to her chosen beneficiaries. It would first have to go through the court system. This is a common situation we see with single professionals, entrepreneurs, and widows or widowers who are the sole owners of their homes. Their largest asset is often held in a way that guarantees court involvement unless they plan deliberately to avoid it.
An Entity Can Be a Sole Owner, Too
Ownership in severalty is not limited to individuals. A corporation, a partnership, or a limited liability company (LLC) can also hold title to real estate in severalty. I work with many executives and business owners who hold their commercial properties or investment real estate through a legal entity for liability protection.
In this case, the entity is the sole owner. If a corporation owns an office building on Madison Avenue, it owns it in severalty. The life and death of the corporation’s shareholders do not directly affect the title to the property. Instead, the ownership of the shares of the corporation is what matters for estate planning. The shares are the asset that passes to the beneficiaries, not the building itself.
This creates a different set of planning considerations. The succession of the business entity must be clearly defined in shareholder agreements, operating agreements, and the individual owner’s estate plan. If the plan is unclear, the control of a valuable piece of real estate can become entangled in a business dispute as well as a probate proceeding.
Intentional Planning for Property Held in Severalty
Holding property in severalty requires a deliberate plan for its transfer. Stewardship means looking beyond your own lifetime. A will is a necessary first step, but it does not avoid probate.
Under New York’s Estates, Powers and Trusts Law (EPTL) § 3-1.1, a person has the right to direct where their property goes through a valid will. If you own property in severalty and die without a will, the state’s intestacy laws will decide who inherits it. The outcome may not align with your wishes, especially in families with complex dynamics.
For many of my clients, the most effective tool for managing property held in severalty is a trust. By transferring the title of the property from their individual name into a revocable living trust, they remain in complete control during their lifetime. They can act as the trustee and manage, sell, or refinance the property as they see fit. Upon their death, a successor trustee they have chosen steps in to manage and distribute the property according to the trust’s private instructions—bypassing the Surrogate’s Court entirely. This is a prudent strategy for maintaining privacy, minimizing delays, and ensuring a seamless transition of a significant asset.
The way you hold title to your property is a cornerstone of your estate plan, not a legal footnote. A prudent first step is to review the deeds for your real estate holdings. At our firm, we often perform a deed and title review for clients to align their ownership structures with their long-term goals for their family and their legacy.
