Buying a home is one of the best reasons to put an estate plan in place. New York estate planning for new homeowners is largely about how your home is titled, which determines whether it passes automatically to a co-owner, goes through probate, or ends up somewhere you never intended. Ken Seligson of Seligson Law explains how property titling works in New York, what happens to your home if you die without a plan, and what tools can protect it.
If you just bought a home in New York, congratulations. You also just acquired the single largest asset most people will ever own, and how that asset is handled after you die depends almost entirely on decisions you may not have realized you were making at closing.
Below, estate planning attorney Ken Seligson explains how New York law treats home ownership, what your deed actually says about who gets your property, and what steps new homeowners should take to protect it.
How Your Home Is Titled Matters More Than You Think
Most new homeowners never think twice about how their name appears on the deed. But under New York law, the way your property is titled determines what happens to it when you die, and in many cases, it overrides what your will says entirely.
There are three ways co-owners can hold real property in New York:
Tenancy by the entirety
Under EPTL Section 6-2.2, when a married couple buys real property in New York, the law automatically creates a tenancy by the entirety unless the deed specifically says otherwise. Here is what that means in practice:
- Each spouse owns an undivided whole interest in the property, not just a divisible share
- When one spouse dies, the property passes automatically to the surviving spouse, with no probate required
- The home is generally protected from one spouse’s individual creditors
- This is the default for married couples buying real estate together in New York, even if the deed does not say so explicitly
Joint tenancy with right of survivorship
Unmarried co-owners, such as partners or family members buying a home together, can hold title as joint tenants with right of survivorship. Like tenancy by the entirety, the surviving owner automatically receives the deceased owner’s share with no probate.
However, this requires specific language on the deed, and all owners must hold equal shares acquired at the same time through the same deed.
Tenancy in common
If a deed does not specify joint tenancy and the owners are not married, New York law presumes a tenancy in common.
Under this form of ownership, there is no right of survivorship. When one owner dies, their share passes through their estate, meaning it goes through probate and is distributed according to their will, or under intestate succession if they have none. This is also the default when two or more unrelated people inherit property together.
Why this matters for your estate plan
If you assume your home will automatically pass to your spouse or co-owner but your deed is actually structured as a tenancy in common, your share could end up in probate and pass to someone other than who you expect. Reviewing how your deed is titled is one of the first things an estate planning attorney should check.
What Happens to Your Home If You Die Without a Plan
If you own your home individually, or your share is held as a tenant in common, your home becomes part of your probate estate when you die. That means it cannot be sold, transferred, or distributed to your heirs until the Surrogate’s Court reviews your will, or if you have none, until your estate is distributed under New York’s intestate succession laws.
While probate is pending, your family may face:
- Months or longer before they have legal control of the home
- Continued responsibility for the mortgage, property taxes, and maintenance
- No ability to sell or refinance the property until the court process concludes
- Distribution to whoever New York law designates as your heirs if you die without a will, regardless of who you actually wanted to receive it
That last point is worth repeating: dying without a will does not mean your home goes unclaimed. It means the state decides who gets it instead of you.
Tools to Protect Your Home as a New York Homeowner
There are several legal tools available specifically for protecting real estate as part of your New York estate plan.
A revocable living trust
Transferring your home into a revocable living trust is one of the most effective ways to avoid probate on real property. You continue to live in and control the home during your lifetime, and you can sell it, refinance it, or change the trust at any time.
When you die, the home passes directly to your named beneficiaries without going through Surrogate’s Court. The key requirement is that the property must actually be retitled into the name of the trust, not just mentioned in the trust document. A home that is never formally transferred into the trust still ends up in probate.
A properly executed will
If you do not want or need a trust, a properly executed will at minimum ensures your home goes to the person you intend, even though it will still pass through probate. This is far better than no plan at all, since intestate succession may not reflect your wishes.
Reviewing your deed’s titling
For married couples, confirming your home is correctly titled as tenancy by the entirety, or updating it if it is not, can provide automatic survivorship protection without any additional documents. For unmarried co-owners, making sure the deed properly establishes joint tenancy with right of survivorship, if that is the intended outcome, is equally important.
Considering estate tax exposure
Home values in New York, particularly in Manhattan, Brooklyn, and other high-value markets, can push an estate close to or over New York’s estate tax exemption of $7.35 million in 2026 without the owner realizing it.
A home alone is rarely enough to trigger this, but combined with retirement accounts, life insurance, and other assets, it can add up faster than expected. New York’s estate tax cliff means crossing that threshold by even a small margin can result in a significantly larger tax bill.
Special Considerations for Married Couples
For married couples in New York, tenancy by the entirety offers a meaningful layer of protection that many homeowners do not realize they already have. Because each spouse owns the whole property rather than a divisible share, an individual creditor of one spouse generally cannot force a sale of the home to satisfy that spouse’s debts.
This protection ends if the couple divorces. At that point, the property automatically converts to a tenancy in common, and each spouse’s share becomes part of their individual estate. If you are going through a divorce, reviewing how your home is titled and updating your estate plan accordingly is an important step.
Talk to a New York Estate Planning Lawyer at Seligson Law
Your home is likely the most valuable asset you own, and how it is titled determines whether it passes smoothly to the people you intend or gets tied up in probate for months. A solid estate plan accounts for that from the outset. Call Seligson Law at 213-293-6692 or send us a message to put a proper plan in place.
Frequently Asked Questions About Estate Planning for New York Homeowners
1. Does my home automatically go to my spouse when I die in New York?
It depends on how the property is titled. If you are married and the deed does not say otherwise, New York law automatically creates a tenancy by the entirety, meaning your home passes to your surviving spouse with no probate. If the title is structured differently, this protection may not apply.
2. What happens to my home if I die without a will in New York?
If your home is solely owned or held as a tenancy in common, it becomes part of your probate estate. Without a will, it passes under New York’s intestate succession laws, which may not reflect who you actually wanted to inherit it.
3. Should I put my home in a trust in New York?
A revocable living trust can help your home avoid probate entirely, as long as the property is properly retitled into the trust’s name. This is a common strategy for homeowners who want a faster, more private transfer to their beneficiaries.
4. What is tenancy by the entirety in New York?
Tenancy by the entirety is a form of property ownership available only to married couples in New York. Each spouse owns the entire property rather than a divisible share, and the home passes automatically to the surviving spouse without probate. It also offers protection from one spouse’s individual creditors.
5. Can my home push my estate over New York’s estate tax threshold?
It is possible, especially in high-value markets like Manhattan and Brooklyn. Combined with retirement accounts, life insurance, and other assets, your home’s value could bring your estate close to or above the $7.35 million exemption for 2026. Contact Seligson Law for help planning around the cliff.
6. What happens to tenancy by the entirety if I get divorced?
Divorce automatically converts tenancy by the entirety into a tenancy in common, removing the automatic survivorship and creditor protections. Each spouse’s share becomes part of their individual estate.
7. Do unmarried co-owners get the same protections as married couples in New York?
Not automatically. Unmarried co-owners must specifically establish joint tenancy with right of survivorship on the deed to get the same automatic transfer benefit married couples receive by default. Without that language, the property is presumed to be a tenancy in common, which does not avoid probate. Ken Seligson can help you and your co-owner structure your deed correctly.
