By Bernard A. Krooks, Certified Elder Law Attorney

Retirement accounts and the family home are typically two of the largest (in terms of value) assets our clients hold. Last month, we wrote about estate planning for retirement accounts. This month, we will tackle the family home. 

There are a number of ways to own your home, or other real property, including tenants by the entirety, joint tenants with right of survivorship, tenants in common, individual ownership, or in some other entity such as a trust, corporation, or partnership. Community property is another way to hold real estate but that does not apply in New York. 

Tenancy by the Entirety: Tenancy by the entirety is unique to married couples. In fact, in New York when a married couple purchases a property, it is presumed that the property is held as tenants by the entirety, unless otherwise noted. Each spouse has an equal, undivided interest in the whole property and the right to use and occupy it. From an asset protection standpoint, this is generally good news since a creditor cannot force a partition (separation) of the tenancy by the entirety unless the debt is owed by both spouses. Upon the death of one spouse, the other surviving spouse automatically becomes the sole owner of the entire property, avoiding probate, even if the deceased spouse’s will says otherwise. 

Joint Tenants with Right of Survivorship: Joint tenants with right of survivorship (JTWROS) is when two or more people hold title to real estate jointly, with equal rights to enjoy the property during their lives. The parties do not have to be married, or even related in order to hold property JTWROS. Similar to a tenancy by the entirety, upon the death of one of the joint tenants, the property passes to the survivor, avoiding probate. However, unlike a tenancy by the entirety, a creditor of one of the joint tenants may be able to force a sale of the property to collect monies owed. 

Tenancy in Common: Under a tenancy in common, each owner of the property has a certain interest in the property. While the shares may be equal, it is not uncommon for tenants in common to hold title to unequal shares. For example, you may own real estate as tenants in common with someone else where you own 60% and the other person owns 40%. Even in this scenario where the ownership interests differ, each tenant in common has the right to use and enjoy the entire property, not just their percentage of the property. However, unlike JTWROS, there is no right of survivorship. If an owner dies, they have the right to transfer their interest in the property to their family or friends under their last will and testament. If the tenant in common dies without a will, then their interest will pass in accordance with the laws of intestacy. 

Individual Ownership: Plain and simple, you may own real property in your name alone and no one else’s. The good news is that during your lifetime, you won’t have to share it with anyone else. This can make things easier in the event you decide to sell or rent the property. You won’t need anybody else’s consent or input. On your death, your will controls who gets the property. In addition, your will may create trusts for beneficiaries who cannot manage real property or beneficiaries with other special needs. Setting up a trust in your will allows a third party to manage the home for the benefit of your beneficiaries without the home being titled in their name. If you wish, you can choose to transfer ownership of the residence to the beneficiary when they reach a particular age or meet some other condition. 

Trust: If a trust owns real property, then the terms of the trust control who has the right to use and occupy the trust during your lifetime and who gets the property on your death. As with individual ownership, you may decide to transfer the property outright or continue to hold it in trust for your beneficiaries, upon your death. Thus, you may give them the right to live in the property without actually owning it. Of course, you will need to decide who pays the ongoing expenses of the property, the trust, or your beneficiaries. 

Conclusion: We hope this was helpful and not too much legal mumbo jumbo. The best way to own real property depends upon your individual circumstances and your own estate planning goals. One size does not fit all.

Bernard A. Krooks, Esq., is a founding partner of Littman Krooks LLP. He was named 2021 “Lawyer of the Year” by Best Lawyers in America® for excellence in Elder Law and has been honored as one of the “Best Lawyers” in America since 2008. He was elected to the Estate Planning Hall of Fame by the National Association of Estate Planners & Councils (NAEPC). Krooks is a past Chair of the Elder Law Committee of the American College of Trust and Estate Counsel (ACTEC). Mr. Krooks may be reached at (914-684-2100) or by visiting the firm’s website at www.littmankrooks.com.