You may have to handle several legal matters while grieving the recent loss of a loved one. Those responsibilities may include determining what happens to jointly owned property when one owner dies in New York. You may ask, Is probate for the jointly owned property necessary? Who owns the house now? This guide helps answer those questions in clear terms.
At the Law Office of Andrew M. Lamkin, P.C., we focus solely on estate and asset management matters. We help families resolve title issues, disputes, and probate filings with confidence and compassion.
What Are the Forms of Joint Ownership in New York?
Owning property with another person can be a source of comfort for many. In joint ownership, you have a partner to share the costs and responsibilities associated with maintaining the property. There are several ways to own property jointly, and determining who owns jointly owned property when one owner dies in New York can be a complex process. These rules and forms of ownership include the following.
Tenancy in Common NY Rules
When someone transfers a home or real estate to two or more people, the transferees generally hold the property as tenants in common unless the deed states otherwise. Each owner has the right to sell, gift, or take out a loan on their interest in the property. If a tenant in common dies, their interest in the property passes to their heirs or beneficiaries. As a result, probate is usually required for that owner’s share of the property.
Joint Tenancy in NY
Creating a joint tenancy is similar to creating a tenancy in common, but with one significant difference: the transferor transfers the property to two or more people with an express declaration that the property is held as a joint tenancy.
If a joint tenant sells their interest in the property, the remaining owner and the new owner become tenants in common. Joint tenancy includes a right of survivorship in NY. If a joint tenant dies, the entire property automatically passes to the surviving joint tenant. If you owned a home as a joint tenant with a loved one who has passed away, that home likely does not have to go through probate and will transfer automatically to you.
Tenancy by the Entirety
When someone transfers their property to a married couple, New York law presumes the married couple owns the property as a tenancy by the entirety, unless the deed states otherwise. Unlike tenants in common and joint tenants, spouses who own property in a tenancy by entirety cannot sell, take out a loan on, or gift the property without each other’s consent. Like joint tenancy, tenancy by the entirety includes a right of survivorship and avoids probate upon the death of one spouse.
If you want to transfer real estate to a married couple without creating a tenancy by the entirety, the deed must specifically state that the property is held as a tenancy in common or joint tenancy.
Property Inheritance in NY: The Probate Process
Probate is the legal process for distributing the estate of a deceased person (a decedent). During probate, the decedent’s personal representative (or executor) must:
- Validate or invalidate the decedent’s will,
- Notify creditors and beneficiaries,
- Inventory and appraise estate assets,
- Pay the decedent’s debts and taxes, and
- Distribute the remaining property to the decedent’s beneficiaries or heirs.
Probate applies when the decedent leaves a will and when they do not.
When Is Probate Not Necessary?
Property owned with survivorship rights, such as joint tenancy or tenancy by entirety, generally does not require probate because the title passes automatically upon the death of one of the owners. Property held in a trust also typically bypasses the probate process. An attorney can help confirm whether probate is required and ensure title transfers correctly.
When is Probate Necessary?
Probate is typically necessary when:
- The decedent owned property in their name only,
- The decedent owned property as a tenant in common, or
- The decedent left a will.
In short, if there is property in the decedent’s estate, the Surrogate’s Court will generally oversee distributing those assets.
When Someone Dies with a Will
When someone dies with a valid will (testate), their property passes according to the instructions in that will. The will must be filed and proven in Surrogate’s Court. Legal assistance can help ensure the will complies with New York law and is properly administered.
When Someone Dies Without a Will
When someone dies without a valid will (intestate), New York’s intestacy law determines who inherits the property. Under the intestacy law, the following relatives receive a decedent’s property:
- If a spouse and children survive the decedent, the first $50,000 plus half of the remaining estate goes to the spouse, and the children receive the balance;
- If a spouse but no children (or issue) survives the decedent, the entire estate goes to the spouse;
- If there are children but no spouse survives the decedent, the whole estate goes to the children;
- If no children or spouse survives the decedent, parents, then siblings may inherit; and
- If no immediate family members survive the decedent, more distant relatives may inherit the estate.
These intestacy rules do not account for loved ones who are not part of your immediate family and may distribute property in ways you did not intend. Estate planning tailored to your specific situation can help prevent this outcome.
Why Seek Legal Help for Jointly Owned Property When One Owner Dies in New York?
Even when survivorship rights apply, families often need legal help to:
- Clarify title issues and correct deed language,
- File affidavits and record the required documents,
- Resolve disputes among co-owners or heirs, and
- Guide probate or estate administration when required by law.
Real Property law and estate administration involve strict legal procedures and deadlines. The Law Office of Andrew M. Lamkin, P.C., helps New Yorkers navigate these challenges with professional guidance, open communication, and practical solutions that protect your family’s interests.
Take Your Next Step with Us
If you are dealing with jointly owned property after someone’s death, experienced legal guidance can make the process more transparent and less stressful. At the Law Office of Andrew M. Lamkin, P.C., we assist families in determining who legally owns real property after a death, whether probate is required, and the necessary steps to transfer title correctly under New York law. Contact our office to schedule a consultation and get the support you need during a difficult time.
Resources:
- New York City Bar, Title to Real Property, link.
- Surrogate’s Court of the State of New York, Affidavit in Relation to Settlement of Estate Under Article 13, SCPA, link.
Andrew Lamkin is principal in the law firm of Andrew M. Lamkin, P.C., where he focuses his practice in the areas of elder law, estate planning and special needs planning, including Wills and Trusts, Medicaid planning, estate administration and residential real estate transactions. He is admitted to practice law in New York and New Jersey.
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