Real property must be disposed of by the laws of the state where it is located. Thus, if a person dies in New York, but also owns property in another state, there will need to be probate proceedings commenced in both places. The “main” probate will be where the deceased resided at the time of death and “ancillary proceedings” will be in other states where real property is located. With court filing fees and other expenses, it can be costly to start probate proceedings in multiple courts.
One technique that can be used to allow the transfer of the property without probate is the use of joint ownership of the property. With joint ownership (not tenants in common), ownership passes upon death. Joint ownership provides for rights of survivorship. Thus, by operation of law, the death of one owner vests full title in the remaining owner(s) without any further action or proceeding. This can be a powerful tool to expedite disposition of real property at death and minimize probate costs and delays. The cost of a deed transfer is almost always a fraction of the cost of probate administration for the property. However, this must be carefully considered, and planned, as there may be issues of loss of ownership control, creditor’s rights, or tax consequences of such transfers. An experienced attorney can help evaluate your individual circumstances and implement the plan that best fits your needs.