What Happens to Jointly Owned Property When a Joint Tenant Dies in New York

By Albert Goodwin, Esq., New York estate attorney, Law Offices of Albert Goodwin. Last reviewed: 2025.

This page explains what happens to a house, condominium unit or co-op apartment in New York when one of two or more joint owners dies and the deed or stock certificate carries a right of survivorship. It covers the statute that moves title, the paperwork that county clerks and NYC ACRIS accept, the estate tax and income tax consequences for the survivor, and the complications that come up most often: a mortgage, a co-op board, Medicaid, and a co-owner who never paid anything toward the property.

It does not cover the transfer on death deed created by Real Property Law § 424, which took effect on July 19, 2024. A transfer on death deed is a different instrument for a sole owner who wants to name a beneficiary without giving up ownership during life. That instrument is explained on our New York transfer on death deed page.

How title passes when a joint tenant dies: EPTL 6-2.2

In a joint tenancy with right of survivorship, each owner holds an undivided interest in the whole property. When one joint tenant dies, that person's interest ends. The surviving joint tenant or tenants hold the entire property by operation of law. No deed, no will and no court order is needed to make that happen. The transfer takes place at the moment of death.

The form of ownership is set by the words on the deed. Under Estates, Powers and Trusts Law (EPTL) 6-2.2(a), a conveyance of real property to two or more people creates a tenancy in common unless the instrument expressly declares a joint tenancy. A deed that lists two names and nothing more creates a tenancy in common, with no survivorship. A deed that says "as joint tenants" or "as joint tenants with right of survivorship" creates survivorship.

Married couples are the exception. Under EPTL 6-2.2(b), a conveyance of real property to a husband and wife creates a tenancy by the entirety unless the deed says otherwise. A tenancy by the entirety also carries survivorship, so the surviving spouse owns the whole property at the first spouse's death. For personal property, which includes co-op shares, EPTL 6-2.2(c) provides that a transfer to spouses creates a joint tenancy unless the instrument states otherwise.

Three points of timing and conduct matter:

• Three or more joint tenants: when one dies, the survivors continue as joint tenants among themselves. The last survivor owns the property alone.
• Deaths close in time: under EPTL 2-1.6, if it cannot be established that one joint tenant survived the other by 120 hours, the property is treated as if each had owned a separate share, and each share passes through that owner's estate.
• Severance before death: a joint tenant (but not a tenant by the entirety) can convey his or her interest during life. That conveyance severs the joint tenancy as to that share and converts it to a tenancy in common. If the decedent severed before death, there is no survivorship in that share.

New York courts have also refused to let a joint tenant who intentionally kills the co-owner keep the benefit of survivorship, following the principle of Riggs v. Palmer, 115 N.Y. 506 (1889).

Do you need probate for jointly owned property?

No proceeding in Surrogate's Court is needed to move title to the surviving joint tenant. The decedent's interest in survivorship property is not part of the probate estate, so an executor or administrator has no authority over it. The survivor can sell, refinance or give away the property without letters testamentary or letters of administration.

Two cautions apply. First, the decedent may have left other assets in his or her sole name, such as a bank account or a car, and those assets may still require probate or administration. See our page on avoiding probate in New York for how survivorship, beneficiary designations and trusts fit together. Second, the fact that the property passed outside probate does not take it outside the estate tax system. The decedent's includible share is part of the gross estate for New York and federal estate tax purposes, and New York Tax Law § 982 makes the estate tax a lien on the gross estate for fifteen years from the date of death. That lien is why title companies ask for estate tax proof at closing, discussed below.

A surviving spouse should also know that the decedent's share of survivorship property can count as a testamentary substitute under EPTL 5-1.1-A when the spouse's elective share is calculated. That rule rarely affects the surviving joint tenant who is the spouse, but it can matter when the joint tenant was someone other than the spouse.

Recording the death: what NYC ACRIS and county clerks actually require

New York uses a deed recording system. There is no certificate of title to surrender and no petition to reissue one. The surviving owner already holds title. The purpose of any filing is to put evidence of the death into the public land records so that a future buyer, lender or title examiner can see why the decedent's name no longer belongs on the deed.

No New York statute requires the survivor to record anything. In practice, we recommend doing so, and the usual steps are these:

1. Obtain certified death certificates. For deaths in New York City, the NYC Department of Health and Mental Hygiene issues them. Elsewhere in the state, the local registrar or the New York State Department of Health does. Get several copies. The lender, the co-op or condo board, the title company and the recording office may each want one.
2. Prepare an affidavit of death of joint tenant. This is sometimes titled an affidavit of surviving joint tenant or, for spouses, an affidavit of surviving tenant by the entirety. It identifies the deed by its recording information (the CRFN in New York City, or the liber and page or instrument number elsewhere), states that the decedent named in the death certificate is the same person named in the deed, gives the date of death, recites the survivorship language, states for spouses that the parties were married and never divorced, and states whether an estate tax return was required. The survivor signs it before a notary.
3. Record it. In Manhattan, the Bronx, Brooklyn and Queens, documents are recorded with the Office of the City Register through ACRIS, which requires an ACRIS cover page. In Staten Island, recording is with the Richmond County Clerk. Outside the city, recording is with the county clerk of the county where the property is located. A certified death certificate is attached to the affidavit. Recording fees are modest. Practice varies by county on whether a death certificate can be recorded on its own, so an affidavit is the safer vehicle.

Some attorneys prefer a confirmatory deed instead of an affidavit. In that approach, the survivor signs a deed from "A, as surviving joint tenant" to A alone. A deed is a conveyance, so recording it requires Form TP-584 (New York State transfer tax, marked as a conveyance without consideration), Form RP-5217 (RP-5217NYC in the city), and in New York City the NYC-RPT real property transfer tax return, along with the recording fee. The benefit is a clean deed in the chain of title. The cost is more forms and higher fees. Either method works, and a title company will accept both.

At a later sale or refinance, the title insurer will typically ask for:

• a certified death certificate;
• the recorded affidavit, or a new affidavit signed at closing;
• proof that the New York estate tax lien does not affect the property. If a Form ET-706 was filed, that proof is the Release of Lien of Estate Tax (Form ET-117). If no return was required, the survivor can apply for a release with Form ET-30, or the title company may accept an affidavit that the gross estate was below the filing threshold; and
• for a tenancy by the entirety, confirmation that the spouses were still married at death, since a divorce would have converted the ownership to a tenancy in common.

The survivor should also notify the NYC Department of Finance (or the local assessor outside the city) so that property tax bills and exemptions such as STAR, the senior citizen exemption and the veterans exemption are carried in the survivor's name. Those exemptions are tied to the owner, and some require a new application by the survivor.

Joint tenancy, tenancy by the entirety and tenancy in common compared

If a dispute has arisen among co-owners, see our pages on partition of real property and buying out a co-owner of an inherited residence.

When there is no survivorship: tenancy in common and EPTL 4-1.1

If the deed lists two or more unmarried owners without survivorship language, each owns a separate share as a tenant in common. The decedent's share does not go to the other owners. It passes under the decedent's will, and if there is no will, under the intestacy rules in EPTL 4-1.1. Someone must be appointed executor or administrator to deal with that share.

The intestacy rules are often misstated. Under EPTL 4-1.1(a)(1), when the decedent is survived by a spouse and issue (children or their descendants), the spouse takes $50,000 plus one-half of the remainder, and the issue take the other half by representation. If there is a spouse and no issue, the spouse takes everything. If there are issue and no spouse, the issue take everything.

Example: a decedent owned a one-half tenancy-in-common interest in a Queens house, and that half interest is valued at $600,000. The decedent left a spouse and two children and no will, and this was the only asset. The spouse's share is $50,000 plus one-half of the remaining $550,000, or $325,000. The two children share the other $275,000. Because a house cannot be split into dollars, the administrator and the heirs typically work out a sale or buyout, and the surviving co-owner may face new co-owners he or she never chose. Our page on a house in two names addresses that situation.

Estate tax, the New York cliff, and the survivor's new basis

New York estate tax

New York imposes its own estate tax. The basic exclusion amount is indexed each year: $6,940,000 for deaths in 2024 and $7,160,000 for deaths in 2025. New York has a cliff. If the taxable estate exceeds 105 percent of the exclusion amount, the exclusion is lost entirely and the whole estate is taxed, at rates that reach 16 percent. New York also adds back certain gifts made within three years of death under Tax Law § 954(a)(3). New York does not allow a surviving spouse to carry over the deceased spouse's unused exclusion.

A New York return (Form ET-706) is required when the New York gross estate plus includible gifts exceeds the basic exclusion amount. It is due nine months after death. An extension of up to six months to file can be requested on Form ET-133, although any tax is still due at nine months. If no return is required, the survivor may still need Form ET-30 to obtain a release of lien for the title company.

Federal estate tax

The federal exemption was $13,610,000 for 2024 and $13,990,000 for 2025, with Form 706 due nine months after death. Most New York estates owe no federal tax. A surviving spouse may still want to file a federal return solely to elect portability of the deceased spouse's unused exemption, which is lost if no return is filed.

How much of the joint property is included: IRC § 2040

Internal Revenue Code § 2040 decides how much of the jointly held property counts in the decedent's gross estate. The answer depends on who the survivor is.

• Spouses: under § 2040(b), exactly one-half of the value is included, regardless of who paid for the property.
• Anyone other than a spouse: under § 2040(a), the full value is included unless the survivor can prove that he or she contributed to the purchase price or improvements. The included portion is reduced in proportion to the survivor's proven contribution. Keep closing statements, canceled checks and records of capital improvements for this reason.

New York follows the federal gross estate as its starting point, so the same inclusion rules apply to the New York return.

Step-up in basis for the survivor

The portion included in the decedent's estate receives a new income tax basis equal to its date-of-death value under IRC § 1014. The survivor's own portion keeps its original basis.

Example: spouses bought a Brooklyn house for $200,000 and it is worth $1,000,000 when the first spouse dies. One-half ($500,000) is included in the estate and takes a $500,000 basis. The survivor's half keeps a $100,000 basis. The survivor's total basis is $600,000. If the survivor sells for $1,000,000, the gain is $400,000 before any exclusion. A surviving spouse who sells a principal residence within two years of the other spouse's death may still claim the $500,000 exclusion under IRC § 121(b)(4) if the other requirements are met.

If instead the survivor were an adult child who contributed nothing, the full $1,000,000 would be included in the parent's estate under § 2040(a), and the child's basis would be stepped up to $1,000,000. A sale at that price would produce no taxable gain.

Common situations after a joint owner dies

The property has a mortgage

The mortgage lien stays on the property. A lender cannot use a due-on-sale clause to call the loan because of the death. The Garn-St Germain Depository Institutions Act, 12 U.S.C. § 1701j-3(d)(3), bars enforcement of a due-on-sale clause on a transfer by operation of law on the death of a joint tenant or tenant by the entirety, for residential property with fewer than five units. The survivor is personally liable on the note only if he or she signed it. A survivor who did not sign still has to keep paying to avoid foreclosure. Federal servicing rules under Regulation X require the servicer to communicate with a confirmed successor in interest, so the survivor should send the servicer a death certificate and proof of ownership promptly. A reverse mortgage follows different rules: if the survivor was not a borrower, the loan can become due, subject to the deferral available to an eligible non-borrowing spouse under HUD's HECM rules.

The property is a co-op

A co-op apartment is not real property. The owner holds shares in the cooperative corporation and a proprietary lease. Survivorship depends on how the stock certificate and lease are titled. For spouses, EPTL 6-2.2(c) supplies a joint tenancy by default. For others, the certificate must say so. Nothing is recorded in ACRIS. Instead, the corporation's transfer agent or managing agent cancels the old stock certificate and issues a new one, and the lease is amended, in the survivor's name. The co-op will usually ask for a certified death certificate, an affidavit, estate tax proof similar to what a title company wants, and payment of its transfer fee. Board approval is generally not required for a survivor who is already a shareholder, but the proprietary lease controls and should be checked. Our page on access to an apartment after a death covers the immediate practical issues.

The property is a condominium

A condominium unit is real property and is treated like a house: title passes under EPTL 6-2.2, and the affidavit or confirmatory deed is recorded in ACRIS or with the county clerk. The survivor should also notify the condo board and managing agent so that common charge bills and building records are updated. Any lien for unpaid common charges stays with the unit.

The decedent received Medicaid

New York's Medicaid estate recovery program, under Social Services Law § 369, reaches the decedent's probate estate. Property that passed by survivorship is outside the probate estate and is generally not subject to recovery. Two points still deserve attention. A transfer of the home into joint ownership during the decedent's life can be a transfer of assets for nursing home Medicaid purposes if it fell within the 60-month look-back period, and it may have triggered a penalty period at the time of the application. And Medicaid rules change frequently, so the survivor should confirm the current position with an elder law attorney before relying on it.

A non-spouse joint tenant who contributed nothing

Parents often add a child to the deed to avoid probate. If the parent dies first, the child takes the whole property by survivorship, and the parent's other children receive nothing from the house, even if the will says otherwise. Three consequences follow. First, when the parent added the child, that was a completed gift of one-half of the property under Treasury Regulation § 25.2511-1(h)(5), which may have required a federal gift tax return (Form 709). Second, the full value is included in the parent's estate under IRC § 2040(a), which gives the child a full step-up in basis. Third, siblings who were cut out sometimes challenge the deed on the grounds of undue influence or lack of capacity, and that litigation is common in Surrogate's Court and Supreme Court. If the parent dies with the child living in the house, the questions on our page about a sibling living rent-free in an inherited house often arise.

Bank accounts and other joint assets

Joint bank accounts follow a different statute, Banking Law § 675, and have their own tax treatment. See are joint bank accounts subject to inheritance tax for that discussion.

Transfer on death deeds are a different tool

Since July 19, 2024, Real Property Law § 424 has allowed a New York owner to sign and record a transfer on death deed naming a beneficiary who takes the property at the owner's death. Unlike adding a joint tenant, a transfer on death deed gives the beneficiary nothing during the owner's life, is not a gift, can be revoked by the owner, and does not expose the property to the beneficiary's creditors while the owner lives. It also does not create survivorship between co-owners. A person who already owns property with another as joint tenants should think carefully before using one, because the survivorship rule under EPTL 6-2.2 may control first. The requirements, the revocation procedure, creditor exposure after death and the comparison with a life estate deed are covered on our transfer on death deed page.

Frequently asked questions

Do I need probate if my spouse and I owned our house jointly in New York?

Not for the house. A deed to spouses creates a tenancy by the entirety under EPTL 6-2.2(b) unless it says otherwise, and the surviving spouse owns the house at the other spouse's death without any court proceeding. Probate or administration may still be needed for assets held in the deceased spouse's sole name.

Do I have to record anything after my co-owner dies?

No statute requires it, and title has already passed. Recording an affidavit of death of joint tenant with a certified death certificate, in ACRIS or with the county clerk, creates a public record that makes a later sale or refinance simpler. The alternative is a confirmatory deed, which requires transfer tax forms.

Does the surviving joint tenant owe New York estate tax?

Only if the decedent's gross estate, including the includible share of the joint property, exceeds the basic exclusion amount for the year of death ($7,160,000 for 2025). For spouses, one-half of the property is included. For a non-spouse survivor, the full value is included unless the survivor proves contribution. Even when no tax is due, a title company may ask for a release of lien.

What if the deed just lists our two names with no survivorship language?

If the owners are not married to each other, the deed created a tenancy in common under EPTL 6-2.2(a). The decedent's share passes under the will or under EPTL 4-1.1, and the survivor will have new co-owners unless a buyout or sale is arranged.

Can the deceased joint tenant's will give away his or her share of the property?

No. A will controls only the probate estate. A joint tenant's interest ends at death and the survivor takes by operation of law, so a will provision leaving that share to someone else has no effect on the property.

Getting help

If a co-owner of your house, condo or co-op has died, we can review the deed or stock certificate, prepare and record the affidavit or confirmatory deed, address the estate tax lien, and deal with the lender, the co-op board or the title company. If the deed did not create survivorship, we can handle the probate or administration proceeding and any buyout or partition that follows. You can call the Law Offices of Albert Goodwin at (212) 233-1233.