When A Person Dies in New York – Who Owns The Real Estate

The settling of a decedent’s estate in New York may involve multiple issues.  At the outset, a determination needs to be made as to whether a decedent died intestate (i.e. with a Last Will and Testament) or intestate (no Will).  This determination then governs as to whether a Probate proceeding or Intestate Administration proceeding is to be filed with the local Surrogate’s Court. Each type of proceeding has its own very special Court processes and issues.  For example, in a Probate Proceeding it is important to locate and file a decedent’s original Last Will.  If the original document cannot be located, it is possible to probate a copy of a Will.  However, a proceeding to probate a copy of a Will where the original has been lost is exceedingly difficult.  Where the original document is known to have been in the possession of a decedent, there is a presentation that it was a decedent’s intention to revoke the Will if the original is missing.  The New York Probate Lawyer Blog has published numerous articles concerning probate, intestate administration and other estate and trust issues.

Many estates contain interests in real property.  The most common situation is the home where a decedent lived.  At the time of death, it is imperative that a search be performed to determine the ownership of the property.  A quick review of the property deed is helpful.  In New York City there is a website called ACRIS which contains copies of deeds and other real estate filings.  A search of the deed may show that a property is owned solely by a decedent.  In such cases, the property would pass according to a Last Will or the laws of Intestacy.  In intestacy, a decedent’s next of kin or distributees would become the property owners.  If there is a Will, the document would specify how the real estate is to be disposed of.

A search of the property records may also show that a property is owned by a number of other individuals along with a decedent as tenants in common.  In other words, each person, as well as a decedent, may own a share of a property, say twenty percent.  Also, a deed may provide that a decedent owns a home with a spouse as tenants by the entirety or with one or more other individuals as joint tenants with rights of survivorship.  In these later cases, the property ownership would pass automatically on death to the surviving spouse or joint owners.  The property would not be controlled by a Last Will nor would it pass to the next of kin.  Thus, a devise of a survivorship property in a Will would be ineffective.

Another interesting aspect of real estate ownership is that when a person dies intestate, an interest in real estate automatically vests or passes to the next of kin.  As a result, a decedent’s estate may not control the property unless there are reasons such as debts or claims like a mortgage which require an estate fiduciary to take control over the property.

As can be seen, dealing with real estate owned by a decedent can be complex.  I have represented clients in estate and trust matters concerning real estate for over 40 years.  Do you have an estate or real estate question relating to inheritance?  Call me now for a free confidential review of your issue.  We provide reasonable and flexible fee arrangements and personal representation.

New York Trusts and Estate Attorney Jules Martin Haas has helped many clients over the past 40 years resolve issues relating to guardianship and probate and estate settlement throughout New York City including the Bronx, Queens, Brooklyn, Manhattan, Nassau and Suffolk County.  If you or someone you know has questions regarding these matters, please contact me at (212) 355-2575 for initial free consultation.