I often get calls from people concerned about deeds to real property when someone dies without a will. When a property owner dies intestate (without a will) the transfer of their real property does not require any action by an administrator or executor. Instead, title to the deceased’s real estate automatically passes to and vests in their heirs or next of kin at the time of death by operation of law. Under New York law, when someone dies intestate, their distributees become tenants in common of any real property the deceased owned. This means each heir acquires an undivided fractional interest in the property. The share of each heir depends on their relationship to the deceased. For example, if the only heirs are the deceased’s children, each child would receive an equal share as Tenants in Common. A “tenant in common” is owns an undivided interest that, if that tenant dies, that persons’ share passes to their heirs or to the people specified in the terms of the deceased tenant’s will.
When there is no will, the vesting of title occurs by operation of law at the moment of death, regardless of whether an administrator is ever appointed or new deeds are recorded. As several New York appellate court decisions have held, no affirmative act by an administrator is needed for the heirs to acquire their interests in the real estate. (see U.S. Bank Trust, N.A. v Gedeon, 181 AD3d 745, 747; Matter of Blango, 166 AD3d 767, 768; Kraker v Roll, 100 AD2d 424, 429). The intestacy statute confers title automatically based on the heirs’ relationship to the deceased. Recording new deeds can provide evidence of the change in title, but the failure to do so does not prevent the vesting by descent. The heirs become tenants in common of the real property at the time of death even if no new deeds are filed.
That means, even if there have been on administration proceedings to appoint an estate representative, under New York’s partition statute, the heirs (as tenants in common) have the right to maintain an action to partition and force the sale of the subject property (see RPAPL 901). New York case law confirms the heirs’ standing to bring a partition action in Supreme Court after inheriting property intestate (see Goldberger v Rudnicki, 94 AD3d 1048, 1050; Graffeo v Paciello, 46 AD3d 613, 614).