New York Title To Real Estate Often Complicates Estate Administration

New York estate settlement is not an easy task

. While estate lawyers assist their clients with probating New York Wills as well as finding and collecting estate assets, paying estate taxes and other debts and obligations, these procedures can be extremely complex.

The ownership of estate assets such as real estate or bank accounts is often the subject of estate litigation. When drafting a Last Will or beginning estate planning, it is fundamentally important to obtain all information regarding the ownership of the testator's assets. Without full and complete information, the estate plan and Will and Trust papers that are prepared can turn a simple estate into one filled with litigation in the Surrogate's Courts.

Real estate ownership typically is the center of many controversies because of its high value and the different ways title can be owned. For example, real estate that is jointly owned with rights of survivorship or by spouses, known as tenants by the entirety, passes automatically from one owner to the other upon death. However, realty that is owned as tenants in common is basically owned in separate shares by the tenant in common owners and does not automatically pass to the other owners upon death. The decedent's estate is entitled to receive the interest of the deceased tenant in common owner.

After a person dies, it is often startling to discover that real estate that had been assumed to be owned as, tenants in common, was really owned as a joint tenancy and the decedent's estate and beneficiaries receive no interest in the property which passes automatically to the joint owner. Moreover, the ownership of property can be even more complicated based upon other variables such as real estate contracts, divorces or marriage separations and agreements that relate to the real estate ownership.

Such was the case in The Matter of Scola, which was decided by Surrogate Peter J. Kelly, Queens Surrogate's Court, on May 9, 2012 and reported in the New York Law Journal on May 18, 2012. In Scola, the decedent and his wife had owned a residence as tenants by the entirety. The parties had signed a Separation Agreement but were still married at the time of the husband's death. The Court found that the Separation Agreement did not provide an adequate expression of intent to prevent the entire property from passing automatically to the wife upon the husband's death.

Given an opportunity to fully analyze and understand the results that would transpire upon the death of either party, perhaps the husband and wife in Scola would have changed the title on the property prior to the husband's death to prevent this automatic transfer.

Estate lawyers in Manhattan and Bronx and throughout New York State typically review their client's deeds and other legal papers such as divorce settlement agreements so that estate plans can be made to reflect their intentions and prevent unexpected property transfers. The extra effort and time expended by clients and estate planners in understanding ownership issues can avoid Court battles and make certain that beneficiaries are not surprised and disappointed due to unexpected title ownership.

by: Jules Martin Haas, Attorney at Law

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