08/31/2023
"READ YOUR DEED"!! What does YOUR Deed say regarding what happens to your property interest should you pass?
In New York State, the WAY in which you "hold title" to real property with someone else, including your spouse, can dictate "survivorship interest" in the event of one's death....as well as determine the "residual interest" when a person deeds their interest to another person/entity.
"Joint Tenants with Rights of Survivorship" (J.T.W.R.S.):
Holding title with someone else in this regard would mean that there is "automatic survivorship/reversionary rights of interest" in the event death should befall one of the parties. Either party, while living, can deed their respective ownership interest to someone else...thereby severing this tenancy.
"Tenants by The Entirety" (Joint Tenants with Rights of Survivorship as between - HUSBAND AND WIFE)
Title held this way ensures automatic reversionary interest, by operation of law, between spouses, should one pre-decease the other. A spouse cannot transfer his/her interest to another party. Only a divorce decree can sever this tenancy.
"Tenants in Common":
When Title is held as such, no automatic reversionary interest occurs in the event of the death of one of the parties; their interest would pass as per one's Trust and/or Will; or if there is no such Testamentary provision in place, via the "Intestacy Statute" of New York State. While alive, any party vested in title can freely transfer his/her interest to another party.
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Deeding of Interest: "Joint Tenants with Rights of Survivorship"
Absent "qualifying language" to the contrary, if a joint tenant with right of survivorship deeds his/her interest to another, a" tenancy in common" is created between the residual joint tenant and the newly deeded owner.
Deeding of Interest: "Tenants by the Entirety"
This tenancy cannot be disrupted/severed unless BOTH spouses "sign off" on the deed; or in the alternative, a Judicially Declared "Divorce Decree" is granted; mandating that ownership of the property will now vest in one of the spouses.
Deeding of Interest: "Tenants in Common"
Absent "qualifying language" to the contrary, if a tenant in common deeds his/her interest to another person, the residual owner and the newly deeded owner will hold title as "tenants in common".
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Be specific; Do not Speculate or Presume!
Defer to your Deed, and be sure that the way in which title is held is "specifically delineated", so as to avoid any potential for confusion or room for error. In most instances, this can assure that there is no need for Will probate; and that all your future intentions are fulfilled. Failure to do so can place you in a precarious situation.
By: Anthony A. Nozzolillo, Esq.
Chief Legal Counsel
On Point Land Services Corporation
