When a young couple buys their first apartment in Manhattan, one of the last things on their minds is how the property deed is worded. They’re focused on the mortgage, the move, the future. But a few words on that document—”joint tenants with right of survivorship” versus “tenants in common”—can dictate whether that property spends a year tied up in Surrogate’s Court or passes seamlessly to the survivor if tragedy strikes. How you hold title to your assets is not a minor detail; it is a foundational act of stewardship.
The Default Path: Individual Ownership and Probate
Owning property in your individual name is the simplest way. It also creates a direct path to probate upon death. Probate is the court-supervised process of validating a will, paying debts, and distributing assets. In New York, this process is handled by the Surrogate’s Court.
I’ve seen estates of all sizes get delayed for months, sometimes years, in probate. The proceedings are public, creating a record of your assets and beneficiaries that anyone can see. It can be expensive, with court fees, executor commissions, and attorney’s fees diminishing the inheritance. For a family already grieving, the procedural demands and delays of court can feel like a second loss. The goal for many is to structure their affairs so their legacy passes to the next generation without this public and often burdensome intervention.
A Common Tool with Hidden Risks: Joint Tenancy
One of the most common methods people use to avoid probate is holding property as “joint tenants with right of survivorship” (JTWROS). When one owner dies, their interest in the property automatically—by operation of law—transfers to the surviving joint owner. The asset does not pass through the deceased’s will and is not subject to probate. It seems simple. It is often too simple.
While effective for probate avoidance, joint tenancy has significant drawbacks. First, adding a joint owner to an asset is a gift that grants them immediate ownership rights. This means the property is now exposed to the new owner’s creditors, lawsuits, or a divorce settlement. If you add your adult child to your deed, their financial troubles can suddenly become your problem.
Second, it overrides your will. You might have a carefully constructed will that divides your assets among three children, but if your largest asset—your home—is jointly owned with just one of them, that one child inherits the entire property. The others get nothing. This is rarely the intended outcome. Under New York Estates, Powers and Trusts Law (EPTL) § 6-2.2, the law presumes a “tenancy in common” unless the ownership document expressly declares a joint tenancy. The language must be deliberate.
The Superior Structure: The Revocable Living Trust
For most of my clients, the most effective and flexible way to hold property and avoid probate is through a revocable living trust. This isn’t just for the ultra-wealthy; it’s a foundational tool for responsible stewardship of any significant asset.
Here’s how it works: We create a trust document that acts as a container for your assets. You then retitle your property—your home, your investment accounts—from your individual name into the name of your trust. For example, instead of “Jane Smith,” the owner becomes “Jane Smith, as Trustee of the Jane Smith Revocable Trust.”
Control, Privacy, and Contingency
You remain in complete control. As the trustee, you can buy, sell, mortgage, and manage the assets just as you did before. Because the trust is “revocable,” you can amend or even dissolve it at any time. Nothing is set in stone.
When you pass away, the assets held by the trust are not part of your probate estate. They are not subject to the delays or public scrutiny of Surrogate’s Court. Instead, the person you named as your successor trustee steps in. Their job is to manage and distribute the trust assets according to the precise instructions you left in the trust document. It’s private, efficient, and ensures your wishes are carried out by a fiduciary you selected.
A trust also plans for incapacity. If you become unable to manage your own affairs, your successor trustee can step in to manage the trust assets for your benefit. Without a trust, your family might face a costly and intrusive court proceeding to have a guardian or conservator appointed. Ownership through a trust is simply more prudent and prepares for life’s contingencies.
The form of ownership you choose is a decision with generational impact. It can mean the difference between a smooth transition and a protracted court battle that drains a family’s resources and emotional reserves. Taking the time to structure it correctly is an investment in your legacy.
The first step is often to understand what you currently have. We can begin with a review of your existing property deeds and financial account statements to determine how your assets are currently titled and which would be subject to probate.
