If you own property and your ownership is structured as joint tenancy, New York law may permit the transfer of the property outside of the probate process after one of the owners passes away. The probate process can be a lengthy and costly process, so finding ways to transfer property outside of it can be very beneficial. When the co-owners of the property are considered joint tenants with rights of survivorship, the property can pass automatically to survivors upon the death of the other owner(s). Because it does not have to pass through probate, a lot of hassle is avoided.
Structuring your ownership of property as a joint tenancy can be an important part of your estate planning process because it can be an effective tool to transfer assets outside of probate. Mark S. Eghrari & Associates PLLC can provide you with assistance in understanding what options you have available for facilitating the transfer of property without going through probate.
Among the options we assist you with include structuring ownership of property in a strategic way. Give us a call to find out more about the ways in which our legal team can help with the smart transfer of your assets.
What Does Joint Tenancy Mean?
A joint tenancy is a way to structure the ownership of real property, such as a house or land. If you and your co-owners take title under joint tenancy with rights of survivorship, each of the owners has access to the entire property and has an equal share of the property.
It is not always possible to own property as joint tenants with rights of survivorship. Four conditions have to be met for co-owners to own the property as a joint tenancy under New York law. Those conditions include:
- All owners having the same interest in the property. One owner cannot have more rights or own a larger share of the property than the other owners.
- Each owner must have received their legal interest through the same conveyance. For example, one deed used to convey an interest to all owners as joint tenants would meet this requirement.
- All owners must have received their ownership interest at the same time. If an additional owner is added later on after the initial conveyance, that owner cannot just become a joint tenant.
- Each owner of a joint tenancy has to be able to possess the whole property and access it all. If anyone is restricted from access or has lesser rights than co-owners, the property cannot be owned as a joint tenancy.
If any of these conditions aren’t met, then no joint tenancy exist and owners will typically own the property as tenants in common instead. Even when the criteria were met and a joint tenancy was created, any owner could unilaterally sever the joint tenancy whenever he wants. An owner could even transfer his ownership interest in the property to someone else without permission of the co-owners.
Married couples could technically also own property as joint tenants with rights of survivorship. However, most married couples will own property as tenants by the entirety. This is the default unless an alternative is specified when property is conveyed. Tenancy by the entirety has similar properties to joint tenancy with rights of survivorship but is only available to people who are married.
If Property is a Joint Tenancy, New York Laws Can Allow Probate Avoidance
When property is owned as a joint tenancy with rights of survivorship, this means that the co-owners are automatically going to inherit the property if any one of the owners passes away. This is what is meant by the right of survivorship. The process of transferring the property is really easy and the joint tenancy is the controlling factor that determines how the property is to be transferred.
For example, if Tim and Susie own property as joint tenants with rights of survivorship and Tim makes a will leaving all of his property to his kids, then all of Tim’s property would go to his kids through probate… except for the property that Tim and Susie owned as joint tenants. That property would pass automatically to Susie without any need for probate to happen first.
Getting Help from An Estate Planning Lawyer
Mark S. Eghrari & Associates PLLC can provide you with advice on whether you should own property as joint tenants so you can transfer that property easily after death. To find out more about joint tenancy, New York rules for property transfers, or other estate planning issues, give us a call today.
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