When someone dies and their name is on the deed to your home, the questions come quickly. Do you now own the whole house? Does the property have to go through Surrogate’s Court? What has to be filed, and with whom? These are common concerns for New York homeowners who shared title with a person who has died.
The answers depend on how the property was titled, the relationship between the owners and whether the deceased left a will. We help surviving co-owners, and the heirs of the deceased co-owner, work out who owns what and get the record straightened out. Our shorter overview of two names on a deed when one person dies covers the same ground in outline.
Understanding Property Ownership Types in New York
Before you can know what happens to the house, you have to know how it was owned. New York recognizes three forms of co-ownership, each with different consequences at death.
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Joint Tenancy with Right of Survivorship
Joint tenancy with right of survivorship is one of the most common ways for two or more people to hold property together in New York. When one joint tenant dies, that owner’s interest passes automatically to the surviving joint tenant or tenants by operation of law, without probate.
The defining feature is the right of survivorship. The deceased owner’s share does not become part of the estate and cannot be given away by will. The survivor becomes sole owner of the whole property the moment the other owner dies.
A valid joint tenancy requires the four unities at the time it is created: the owners must acquire their interests at the same time (unity of time), through the same deed or instrument (unity of title), in equal shares (unity of interest), and with equal rights to possess the whole property (unity of possession).
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Tenancy by the Entirety
Tenancy by the entirety is a form of joint ownership available only to married couples in New York. Like joint tenancy it carries a right of survivorship, so the surviving spouse automatically becomes sole owner when the other spouse dies.
During the marriage it also provides protection. One spouse cannot sell or mortgage the property alone; the other spouse’s consent is needed. And the creditors of one spouse generally cannot force a sale of the property to satisfy that spouse’s individual debts.
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Tenancy in Common
Tenancy in common is fundamentally different because it does not include a right of survivorship. Each tenant in common holds a separate, distinct share of the property.
When a tenant in common dies, that share becomes part of the deceased owner’s estate. It does not pass to the surviving co-owner. It goes to the beneficiaries under the will or, if there is no will, to the heirs under New York’s intestacy laws. The surviving co-owner may therefore end up sharing the house with the deceased owner’s spouse, children or other beneficiaries.
How to Determine How Your Property Is Titled
The deed determines how ownership is held. To find out whether you and the deceased co-owner were joint tenants, tenants by the entirety or tenants in common, read the granting language of the deed.
| Form of ownership | What the deed usually says |
|---|---|
| Joint tenancy | “As joint tenants with right of survivorship” or similar language |
| Tenancy by the entirety | “As tenants by the entirety,” or simply both spouses named as grantees |
| Tenancy in common | “As tenants in common,” or language indicating separate ownership shares |
In New York, married couples are presumed to hold property as tenants by the entirety unless the deed says otherwise. Unmarried co-owners are presumed to be tenants in common unless the deed expressly creates a joint tenancy with right of survivorship.
If you cannot find the deed, a copy can be obtained from the county clerk’s office for the county where the property is located. We read the deed language and tell you what your rights are.
Steps to Take When a Co-Owner Dies
What has to happen next depends on the form of ownership. The two situations are quite different.
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If You Held Property with Right of Survivorship
If you and the deceased held the property as joint tenants with right of survivorship or as tenants by the entirety, you became sole owner automatically at death. You still need to clear the title so that the public record reflects your sole ownership.
The main step is to record an affidavit of survivorship (also called a survivor’s affidavit) with the county clerk’s office where the property is located. The affidavit attaches a copy of the death certificate, describes the property and how it was titled, states that you are the surviving owner, and refers to the original deed or where it is recorded. Our page on removing a deceased person from a deed describes the filing in more detail.
Once the affidavit is recorded, the record shows you as sole owner. That matters for any later transaction: a sale, a refinance or a home equity loan.
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If You Held Property as Tenants in Common
If you and the deceased owned as tenants in common, the deceased owner’s share must pass through the estate, which usually means a proceeding in Surrogate’s Court.
If there is a will, the share passes to the beneficiaries named in it. The executor files the will for probate, and once the estate is settled the executor conveys the share to those beneficiaries by executor’s deed. If there is no will, the share passes under New York’s intestacy laws, generally to the closest living relatives, beginning with a spouse and children, and an administrator makes the conveyance.
As the surviving tenant in common you may find yourself sharing ownership with people you did not choose. That creates real complications if you want to sell, or if the new co-owners have different ideas about how the property should be used or managed; the ultimate remedy when co-owners cannot agree is a partition action.
Common Challenges and How an Attorney Can Help
Transfers after a co-owner’s death often raise problems that need legal work to resolve.
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Disputes Over Ownership
Family members or other potential heirs may dispute the form of ownership or claim a right to the property. The dispute usually arises because the deed language is ambiguous, because there is a question whether the deceased was competent when the deed was signed, because someone claims the deceased was pressured into adding another person to the deed, or because fraud or forgery is alleged. We gather the evidence, interpret the documents and, if it comes to that, litigate; see our page on contesting a deed transfer.
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Mortgage and Financial Obligations
If both owners were on the mortgage, the surviving owner remains responsible for the payments. If only the deceased was on the mortgage, the position is more complicated. Under federal law, a lender generally cannot accelerate the mortgage or demand full payment when a borrower dies and the property passes to a surviving joint owner, spouse or relative. We help clients understand those rules and deal with the lender.
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Title Issues and Clearing the Deed
Even a straightforward transfer can run into title problems: outstanding liens or judgments against the deceased, errors in the deed or the property records, missing documents, or questions about the legal description of the property. We run the title search, identify the issues and take the steps needed to clear title so you have clean, marketable ownership.
Protecting Your Rights as a Surviving Property Owner
Prompt action protects your rights and avoids later complications.
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Obtain certified copies of the death certificate
You will need them for the county clerk, the lender and every financial institution.
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Locate and review the deed
Determine how the property was titled and what form of ownership existed.
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Consult an attorney
Have the deed and the family situation reviewed so you know whether a survivorship affidavit is enough or an estate proceeding is needed.
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Address mortgage and insurance
Contact the lender and the insurance company so the accounts are updated and coverage continues.
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File the necessary documents
Whether that is an affidavit of survivorship or a petition in Surrogate’s Court, make sure everything is properly prepared and recorded.
Why Legal Representation Matters
Property transfers at death have significant financial consequences, and mistakes produce title defects, family disputes and problems selling the house that can take years and real money to fix. We interpret the deed, handle the Surrogate’s Court proceeding where one is needed, prepare and record the documents, resolve competing claims, clear title and deal with the lender and the other parties. If three people were on the deed rather than two, the analysis is similar; see three names on a deed and one person dies.
Contact Us About a House in Two Names
Whether you need a simple affidavit of survivorship or are facing probate, a title dispute or a mortgage problem, call us at 212-233-1233 or email [email protected]. We will tell you how the property passes and what has to be filed.
