Key Takeaways
- Property ownership after a co-owner’s death depends on the deed’s ownership structure.
- Joint tenancy with survivorship transfers the deceased owner’s share automatically to surviving owners.
- Tenancy in common allows a deceased owner’s share to pass to heirs through a will.
- Tenancy by the entirety transfers full property ownership to the surviving spouse.
- If ownership type is unspecified, tenancy in common is typically the default arrangement.
What happens when two names are on a deed and one dies? The answer to this question depends on how the deed is worded. These types of ownership questions often come up alongside other estate planning decisions, such as Can Two Siblings Have Power of Attorney?, where families must carefully structure legal authority and responsibilities. The property could be owned as joint tenancy with rights of survivorship, tenancy in common, or tenancy by the entirety. If the deed specifies joint tenancy with rights of survivorship, the surviving owner automatically inherits full ownership of the property. However, if no ownership type is specified, the default is tenancy in common, which may require legal steps to transfer the deceased owner’s share.
A tenant on a real estate deed is a co-owner, not a renter of a property.
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Joint Tenancy with Right of Survivorship
If the deed indicates joint tenancy with the right of survivorship when one owner dies, their share of the property automatically passes to the joint owner or owners. Each co-owner or tenant holds an equal share of the property, and they each have the same rights to use and enjoy the entire property, no matter how much they have contributed to its purchase and upkeep.
Joint tenancy with rights of survivorship means that the deceased owner’s share of the property automatically passes to the co-owners without needing to go through the probate process.
To officially transfer the property, the surviving owner needs to obtain a certified copy of the deceased co-owner’s death certificate and file it, along with the legal description of the property and original deed, with the local records office.
Unlike other arrangements, a property under joint tenancy with rights of survivorship does not allow ownership to be transferred to the deceased person’s heirs.
If a co-owner of a property held under joint tenancy with the right of survivorship sells their share of the property, the joint tenancy with rights of survivorship terminates, and it becomes a tenancy in common.
Joint tenancy with right of survivorship agreements override a will because the property does not go through probate. When the last surviving co-owner of the property dies, the property is included in their will and is passed to their heirs.
Tenancy in Common
If a property is owned as tenancy in common, there are no rights of survivorship. Each co-owner’s share of the property passes to their heirs as specified in their will. Because that share moves through the deceased owner’s estate, settling it often means working with a probate attorney in New York to transfer it to the rightful heirs.
Unlike joint tenancy with rights of survivorship, when a property is owned as tenancy in common, each tenant can bequeath their share of the property to their heirs. Tenants In common are not required to share interest in the property equally.
Tenants share the rights to use and enjoy the property, and each tenant can sell or borrow against their share. Owners of the property can buy out the other tenants and dissolve the tenancy.
If a disagreement occurs and the co-owners cannot reach an understanding, the court will divide the property. The respective tenant will individually own and manage each share of the property.
If there are multiple co-owners of a property and the deed is silent regarding the ownership structure, tenancy in common is the default situation if the co-owners are not spouses. If the co-owners are spouses, then the default ownership is tenancy by the entirety.
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Tenancy by the Entirety
Tenancy by the entirety is an ownership option typically reserved for married couples. When one spouse dies, complete ownership of the property passes to the surviving spouse, similar to real estate owned as joint tenancy with rights of survivorship. The property does not pass through the probate process.
Property owned under tenancy by the entirety is considered to be a single property in which each spouse has an equal and undivided interest.
Since both spouses own the property, creditors cannot force the sale of the property in order to pay the debts of one spouse. This protects the property from sale or foreclosure if only one spouse has debts.
Common ways for tenancy by the entirety agreements to end are by mutual consent, divorce, or death.
Generally, if there are two names on the deed and the deed does not describe how the property is owned, the default is that it is owned as tenants in common if the co-owners are not spouses and tenancy by the entirety if they are.
If you co-own property with a non-spouse or have questions about how to transfer ownership of a co-owned property, contact us.
If you have questions about transferring wealth across multiple generations or want to learn about how to protect your assets and property with a comprehensive set of estate planning tools, contact us.
Does Jointly Owned Property Always Avoid Probate?
Not every jointly owned property skips probate when a co-owner dies. Whether a situation with two names on a deed where one person dies triggers probate or not comes down entirely to how ownership was structured at the time the deed was recorded. Under New York Estates, Powers and Trusts Law § 6-2.1, property can be held in several distinct forms, and each form carries different consequences when an owner passes away.
Joint Tenancy with Right of Survivorship and Tenancy by the Entirety generally allow the surviving owner to take full ownership immediately, without the property passing through Surrogate’s Court. Tenancy in Common works differently. The deceased owner’s share does not transfer automatically to the co-owner. Instead, it becomes part of the deceased owner’s estate and moves through probate along with their other assets, whether distributed under a will or under New York’s intestacy statutes.
It Depends on How Ownership Is Listed on the Deed
New York law does not leave ownership type to guesswork. EPT § 6-2.2 sets default rules that apply when a deed’s language is unclear or silent. A disposition of property to two or more people creates a tenancy in common unless the deed expressly states otherwise, while a disposition to a married couple creates a tenancy by the entirety unless the deed declares a different arrangement. These defaults matter because many co-owners assume survivorship applies simply because two names appear on the deed, when in fact New York law presumes the opposite unless the deed says so directly.
Joint tenancy can also be severed after it is created. Under New York Real Property Law § 240-c, a joint tenant may sever the arrangement unilaterally by executing and recording a deed or written instrument that reflects that intent, and severance can likewise occur through court order or agreement among all joint tenants. Once severed, the interest converts to a tenancy in common, and the automatic survivorship benefit no longer applies to that share.
Why the Language on a New York Deed Matters
The outcome for a surviving co-owner is not determined by intention, family expectation, or how the owners described their arrangement to one another. It is determined by the words recorded on the deed itself. Two people can believe they hold property jointly with full survivorship rights, only to discover after a death that the deed never included that language, leaving the deceased owner’s share subject to probate. Reviewing deed language before a death occurs, rather than after, allows co-owners to confirm the arrangement actually reflects what they intended and to correct it through a properly executed and recorded instrument if it does not.
Speak With a New York Estate Planning Attorney
Co-ownership questions rarely have simple answers, especially when a non-spouse is involved or ownership needs to change hands. Katzner Law Group helps New York families clarify deed language, resolve co-ownership concerns, and plan for wealth transfer across generations. Our attorneys can also guide you through options to protect your assets and build a comprehensive set of estate planning tools suited to your family’s needs. Call us at (855) 528-9637 today to schedule a consultation and get clear answers about your property and your future.
