Disclaimer: This article is for educational purposes only and does not constitute legal advice. Consult a qualified attorney for advice on your specific situation.
Detailed Answer
In New York, some real property interests pass automatically at death by operation of law, but most sole-owner real estate requires probate to transfer title. Understanding the difference will help you determine when probate is necessary.
1. Automatic Transfer by Operation of Law
- Joint Tenancy with Right of Survivorship: Under EPTL § 2-1.5, if two or more people hold property as joint tenants, the decedent’s share passes instantly to the surviving joint tenant(s) without probate. EPTL 2-1.5.
- Transfer on Death Deed (TOD Deed): Real property titled in a TOD Deed under EPTL 13-B transfers automatically to the designated beneficiary when recorded properly during the owner’s lifetime. No probate is required. EPTL 13-B.
2. Probate Required for Solely-Owned Property
If the decedent owned real estate in their sole name without a survivorship feature or TOD instrument, probate is necessary. Probate accomplishes the following:
- Validates the Will. The Surrogate’s Court reviews the will to confirm its authenticity. SCPA 702.
- Appoints a Fiduciary. The court issues letters testamentary to the executor, granting authority to manage and distribute estate assets.
- Clears Title. Title companies and county clerks typically require letters testamentary to record a new deed in the beneficiary’s name.
- Addresses Liens and Debts. The executor uses probate authority to satisfy mortgages, property taxes, and other claims before distribution.
Without probate, you cannot legally change the deed, satisfy encumbrances, or establish clear ownership of the property. Even if the will directs the transfer, third parties will insist on court-issued letters to protect their interests.
Helpful Hints
- Review the deed to confirm the type of ownership (joint tenancy, tenants in common, or sole ownership).
- Consider using a Transfer on Death Deed (EPTL 13-B) to avoid probate for future real estate transfers.
- Gather all executed wills and check for codicils before filing with Surrogate’s Court.
- Contact the county clerk’s office to understand local requirements for recording deeds and probate proceedings.
- Keep detailed records of debts, liens, and property taxes to streamline the executor’s duties.