Transfer at Death, Descent, Devise and Escheat

For the New York salesperson exam, use this rule: will means devise, no controlling will means descent, and no lawful heir means possible escheat.

What is the fastest transfer-at-death comparison?

Keep three nouns separate:

• devise: transfer of real property by will;
• descent: passage of real property under intestacy law;
• distribution: broader statutory allocation of a decedent's property.

Official source map

The New York State Department of State Real Estate Salesperson 77-Hour Curriculum includes intestacy, administration, title by descent, heirs, testacy, probate, devise, devisee, executor and escheat in Subject 3, Legal Issues.

Surrogate's Court Procedure Act section 103 supplies exact New York definitions. It defines a devise as a transfer of real property by will, a devisee as its recipient, a bequest or legacy as a transfer of personal property by will, a distributee as a person entitled under descent and distribution statutes, an executor as a person to whom letters testamentary have issued, and an administrator as a person to whom letters of administration have issued.

Estates, Powers and Trusts Law section 4-1.1 provides the intestacy order for property not disposed of by will. Abandoned Property Law section 200 supplies the separate real-property escheat rule when title fails from a defect of heirs.

Real Property Law section 424 authorizes a revocable transfer-on-death deed for New York real property. The deed must meet the statute's execution, witnessing, acknowledgment and pre-death recording requirements. It has no effect on the beneficiary's property rights during the owner's life and transfers only the interest the owner still holds at death. The Department of Taxation and Finance RP-5217 filing guide confirms that a transfer-on-death deed does not need Form RP-5217 or TP-584 when recorded.

EPTL section 11-1.1 states a fiduciary's default powers over estate property, while SCPA section 1902 identifies purposes for which estate real property may be disposed of. The 2026 Appellate Division decision Rhiney v Rhiney explains the relationship between title vesting at death and the fiduciary's power to sell.

What is the exam testing?

You should be able to:

• distinguish testate from intestate death;
• define will, devise, devisee, bequest and legacy;
• distinguish a nominated executor from a court-authorized executor;
• distinguish probate from administration;
• identify the New York intestacy order and spouse's current statutory share;
• apply “by representation” to descendants;
• distinguish distributee from beneficiary;
• recognize partial intestacy;
• separate probate property from survivorship, transfer-on-death deeds and other beneficiary transfers;
• identify the creation, recording, lifetime effect and revocation rules for a New York transfer-on-death deed;
• explain when title to estate real property vests;
• identify the fiduciary's possible power to sell estate real property;
• recognize an executor's deed without assuming perfect title;
• distinguish escheat from unclaimed funds and foreclosure;
• identify the professionals who must resolve estate authority and title.

This article teaches the exam framework and transaction warning signs. It does not advise a family how to plan or settle a particular estate.

What does testate mean?

A person dies testate when a valid will governs some or all of the person's probate estate. The person who made the will is the testator. Older materials sometimes use “testatrix” for a woman, but New York statutes and modern practice use testator without that gender distinction.

A will is not a present deed. EPTL section 1-2.19 defines a will as an instrument or authorized declaration that takes effect upon death and is revocable during the maker's lifetime. Naming a person to receive the house does not transfer current title while the testator lives.

Exam cue: owner signs a valid will leaving a parcel to a niece. The niece is not the current grantee. At the owner's death, the will may create a devise, subject to probate and estate administration.

What does intestate mean?

A person dies intestate when no valid will disposes of the probate property at issue. The person may have signed no will, the offered will may be denied probate, or a valid will may leave part of the estate undisposed.

This last category is partial intestacy. EPTL section 4-1.1 applies to “property of a decedent not disposed of by will.” A person can therefore die testate as to one asset and intestate as to another.

Exam cue: a valid will devises a cabin but contains no residuary clause and does not dispose of a second parcel. The cabin passes under the will. The second parcel can pass under intestacy law.

What is a devise?

Under SCPA section 103, a devise is a transfer of real property by will. The person receiving that real property is the devisee.

Example:

“I give my Albany townhouse to Jordan.”

The testamentary gift of the townhouse is a devise. Jordan is the devisee.

Do not call a lifetime deed a devise. A deed is delivered during life to make a present conveyance. A devise operates through a will at death.

What is a bequest or legacy?

SCPA section 103 uses bequest or legacy for a transfer of personal property by will.

This creates a clean exam distinction:

• house by will: devise;
• cash, car or shares by will: bequest or legacy;
• real property recipient: devisee;
• person entitled under intestacy: distributee.

Everyday speech often uses “inherit” for all of these. The exam may demand the more precise term.

Review real property, personal property and fixtures if the question first requires classifying the asset.

What is probate?

Probate is the Surrogate's Court proceeding in which a will is presented and proved as the decedent's valid will. The New York Courts' Surrogate's Court overview explains that the court oversees probate, administration and the management and distribution of estate assets.

Probate is not a synonym for death and not the same as recording a deed. It is the court process concerning the will and estate authority.

A typical probate sequence is:

1. file the original will, death certificate and petition;
2. identify and notify the required interested persons;
3. resolve objections or proof issues if any;
4. admit the will to probate if the court is satisfied;
5. issue letters testamentary to the qualified executor;
6. administer claims, expenses, taxes and property;
7. distribute or sell assets under the will and governing law;
8. account and close the estate as required.

The facts of a particular estate can change the procedure substantially. For the exam, focus on probate proves the will; letters evidence fiduciary authority.

What is administration?

Administration is the estate proceeding used when the decedent died without a controlling will and an administrator is needed. The court issues letters of administration to the qualified appointee.

If there is a will but no nominated executor can serve, the court may appoint an administrator c.t.a., meaning an administrator with the will annexed. SCPA section 103 treats that as a distinct fiduciary role.

The New York Courts fiduciary guide explains that:

• an executor serves in a probate proceeding and is named in the will;
• an administrator serves in an administration proceeding;
• each is a fiduciary appointed by the Surrogate's Court;
• the fiduciary collects and protects assets, pays proper obligations, then transfers property under the will or intestacy law.

Exam cue: no will and a court-appointed estate representative. Choose administrator, not executor.

Is the person named in the will already the executor?

Not in the precise statutory sense. A will nominates the person. SCPA section 103 defines an executor as a person to whom letters testamentary have issued.

SCPA section 703 states that court-issued letters are conclusive evidence of authority until reversed, suspended, modified or revoked. A current certificate of letters is commonly used to prove the fiduciary's identity and authority.

For transaction review, ask for the will, probate decree, letters and any restriction on the letters. Avoid relying on a listing contact saying, “The will makes me executor.”

Who gets letters of administration?

SCPA section 1001 sets a priority order among eligible distributees. It begins with the surviving spouse, then children, grandchildren, either parent, brothers or sisters, and other eligible distributees, subject to statutory qualifications, consents and court authority.

The person receiving the largest intestate share is not automatically authorized to sign an estate deed. The court must issue letters, and the letters may be limited or restricted.

This is another exam distinction:

• EPTL 4-1.1 answers who shares in the estate;
• SCPA 1001 answers who has priority to seek appointment;
• the court's letters answer who currently has fiduciary authority.

What makes a New York will formally valid?

For a conventional will, EPTL section 3-2.1 requires a writing and the statutory execution and attestation steps, except for limited authorized nuncupative and holographic wills.

The foundation rules include:

• the testator signs at the end, or another person signs in the testator's presence and at the testator's direction under the statutory conditions;
• the testator signs before each witness or acknowledges the signature to each;
• the testator declares to each witness that the instrument is the testator's will;
• at least two attesting witnesses sign at the testator's request;
• both witnesses complete attestation within one 30-day period.

EPTL section 3-1.1 permits a person age 18 or older and of sound mind and memory to dispose of real and personal property by will.

These are estate-law rules, not tasks for a salesperson to supervise. A salesperson who encounters a questionable will should refer the family to the estate attorney and Surrogate's Court process.

Are electronic wills effective in New York as of August 27, 2026?

No. New York enacted electronic-will provisions, but the statutory notes make them effective on December 12, 2027. As of this guide's August 27, 2026 review date, EPTL sections 1-2.19 and 3-2.1 still apply their current pre-electronic-will language.

That timing matters. A page that says electronic wills are already an ordinary New York option in August 2026 is ahead of the effective date.

The exam is based on the Department of State curriculum. Learn the currently effective conventional formalities unless DOS publishes a later curriculum change after the new provisions take effect.

Can a will be changed or revoked?

Yes, through the methods New York law recognizes. A codicil can amend or supplement a will. EPTL section 3-4.1 permits intended revocation or alteration through another will, a qualifying writing executed with will formalities, or specified physical acts performed under the statutory conditions.

The exam-level rule is simpler: a will is revocable during the testator's life and does not make a present transfer. Destroying a photocopy, crossing out a sentence informally or telling a friend about a change does not necessarily satisfy the statute.

Which assets does a will control?

A will controls probate assets that are part of the decedent's estate and effectively disposed of by the will. It does not automatically override a valid survivorship form, beneficiary designation or completed lifetime transfer.

Examples of property that can pass outside the will include:

• real property held in joint tenancy with right of survivorship;
• real property held by spouses as tenants by the entirety, when survivorship applies;
• assets held in a valid lifetime trust;
• life insurance or retirement benefits with an effective beneficiary designation;
• qualifying payable-on-death or transfer-on-death assets;
• property transferred by a valid lifetime deed.

The New York Courts explains that an estate holding only joint assets and assets with named beneficiaries may not require an estate proceeding. The document creating the ownership or beneficiary right controls that result.

Review tenancy in common, joint tenancy and tenancy by the entirety for the survivorship distinction. A tenant in common's share can pass by will or intestacy; a valid survivorship interest passes to the surviving co-owner.

What is a New York transfer-on-death deed?

A transfer-on-death deed, often called a TOD deed or TODD, is a deed authorized by Real Property Law section 424. An individual owner can name one or more beneficiaries to receive the owner's transferable interest in New York real property at the owner's death.

The statute calls the transfer nontestamentary. That means the deed is not a will and the transfer does not depend on admitting the deed to probate. It is also not a present gift. During the owner's life, the designated beneficiary receives no legal or equitable interest from the TOD deed.

The owner remains free to:

• occupy and use the property;
• sell or otherwise transfer it;
• mortgage or encumber it;
• revoke the TOD deed through an authorized recorded instrument.

If the owner no longer owns an interest at death, the TOD deed has nothing to transfer.

How is a transfer-on-death deed created in New York?

Real Property Law section 424 requires a transfer-on-death deed to:

1. contain the essential elements and formalities of a properly recordable lifetime deed, except as the TOD statute provides otherwise;
2. state that the transfer to the designated beneficiary occurs at the transferor's death;
3. be signed by two witnesses who are present at the same time and witness the owner's signing;
4. be acknowledged before a notary public;
5. be recorded before the owner's death in the county clerk's office for the county where the property is located.

The transferor needs the same legal capacity required to make a will. The deed can operate without consideration and without lifetime notice, delivery to, acceptance by, or consent from the designated beneficiary.

Recording before death is essential. A signed deed left in a drawer does not satisfy the statute. If the property lies in more than one county, the statutory form instructs the owner to record in each county.

The Department of Taxation and Finance RP-5217 frequently asked questions states that recording a TOD deed does not require Form RP-5217 or TP-584. That is a specific filing exception, not a general exemption for other deeds.

How is a New York transfer-on-death deed revoked?

A transfer-on-death deed is revocable even if it says otherwise, but the owner must use a method authorized by the statute. An effective revocation can be:

• a later transfer-on-death deed that expressly revokes the earlier deed or is inconsistent with it;
• a separate instrument that expressly revokes the deed;
• a lifetime deed that expressly revokes the transfer-on-death deed.

The revoking instrument must be acknowledged after the deed being revoked and recorded before the transferor's death in the county clerk's office where the original deed is recorded. Destroying the recorded deed, writing on it or attempting to revoke it by will does not satisfy section 424.

When more than one transferor signed the TOD deed, the joint-owner rules require careful attention. Revocation by one transferor does not revoke another transferor's interest, and a deed by joint owners can be revoked only by all living joint owners.

What happens when the transfer-on-death deed owner dies?

The designated beneficiary must survive the transferor. A beneficiary who does not survive has a lapsed interest, subject to the deed's terms and the statute's rules for any other named beneficiaries.

The beneficiary takes the transferred interest subject to the mortgages, liens, conveyances, contracts and other encumbrances affecting the property at death. The transfer carries no covenant or warranty of title even if the deed says otherwise.

A transfer-on-death deed also does not erase estate obligations. If the probate estate cannot pay an allowed creditor claim or a statutory allowance for a surviving spouse or child, section 424 permits the estate to enforce liability against TOD property to the statutory extent. A proceeding under that provision must begin no later than 18 months after the transferor's death.

Exam cue: a TOD deed can avoid probate for the property transfer, but it does not create a beneficiary interest during the owner's life, remove existing liens or defeat the statute's estate-claim rules.

How does a transfer-on-death deed differ from a devise?

Both operate at death and both can be revocable during life, but they use different instruments, formalities and transfer paths.

Does a life estate pass through the life tenant's will?

The life tenant's life estate ends at the measuring life. The remainder or reversion then becomes possessory under the instrument that created it. The life tenant cannot devise a fee interest the life tenant did not own.

The life tenant may own other interests or claims that enter the estate, but the life estate itself is defined by its duration. Review fee simple, life estates and leasehold estates when an exam question mixes present possession with transfer at death.

What is descent?

Descent is the passage of real property under the statute of intestate succession. The recipient is a distributee under New York's statutory terminology.

People often say “heir,” and the Department of State curriculum uses the term. For precise New York procedure, use distributee when referring to a person entitled under the statutes governing descent and distribution.

Descent is not a deed from the decedent. It occurs by operation of law at death, subject to estate administration, claims and fiduciary powers.

What is New York's intestacy order?

EPTL section 4-1.1 distributes property not disposed of by will after deducting debts, administration expenses and reasonable funeral expenses as the statute directs.

Do not add an eighth class to EPTL 4-1.1. The current subdivision (a) ends at paragraph (7). If no qualifying distributee exists, the separate escheat statute becomes relevant.

What does issue mean?

EPTL section 1-2.10 defines issue as descendants in any degree from a common ancestor and includes adopted children unless a contrary intent is indicated.

Issue can therefore include children, grandchildren and more remote descendants. It does not mean parents, siblings, nieces or nephews.

Exam cue: “survived by spouse and issue” means spouse plus descendants, not spouse plus every relative.

What does by representation mean?

EPTL section 1-2.16 defines distribution by representation. At the nearest generation with a surviving descendant, the estate is divided into shares for living members and deceased members who left surviving issue. Living members take their shares. The shares allocated to deceased members are combined and divided in the same manner at the next generation.

Worked example:

• Dana dies intestate with no spouse.
• Dana had three children: Ari, Ben and Cora.
• Ari survives.
• Ben died first and left one child.
• Cora died first and left two children.

At the children's generation, make three shares. Ari receives one-third. Ben's and Cora's shares are combined, making two-thirds. The three grandchildren then divide that combined amount equally, so each receives two-ninths.

Check: one-third plus three times two-ninths equals one whole.

Do half siblings count in New York intestacy?

Yes. EPTL section 4-1.1(b) treats relatives of the half blood as relatives of the whole blood for purposes of that section.

If the facts say the decedent had no spouse, issue or surviving parent, a half sibling is not excluded merely because only one parent was shared.

Can a child born after the decedent inherit?

EPTL section 4-1.1(c) provides that distributees conceived before death but born alive afterward take as though born during the decedent's lifetime.

New York also has detailed provisions for certain children conceived after death in EPTL section 4-1.3. Those rules require more than the simple fact that reproductive material existed. Unless a question supplies the statutory facts, do not improvise an inheritance result.

Do adopted and nonmarital children inherit?

Adopted children are included in the issue definition, with inheritance rights also governed by Domestic Relations Law provisions. EPTL section 4-1.2 provides the current rules for inheritance by nonmarital children, including specific methods for establishing parentage in the relationships covered by the statute.

For the exam, avoid using outdated social assumptions. Use the statutory relationship and facts. In practice, lineage disputes belong in Surrogate's Court with estate counsel.

Can a surviving spouse be disqualified?

A person described as a spouse in the facts may be disqualified from surviving-spouse rights. EPTL section 5-1.2 addresses circumstances including a final divorce, specified invalid marriages, a qualifying separation judgment, abandonment and failure to support under the statute's terms.

An informal separation is not automatically the same as a disqualification. The exact statutory ground and evidence matter.

Similarly, EPTL section 4-1.4 can disqualify a parent from an intestate share in a deceased child's estate under the stated abandonment, support and parental-rights conditions.

Is the intestate spouse's share the same as the elective share?

No. The intestate share under EPTL section 4-1.1 applies to property not disposed of by will. The elective share under EPTL section 5-1.1-A protects a qualifying surviving spouse from being disinherited through the will and specified testamentary substitutes.

The current elective-share formula is generally the greater of one-third of the net estate or $50,000, except that the first figure is the net estate itself when its capital value is below $50,000. Statutory definitions, credits, deadlines and exceptions apply. It is not the same formula as the spouse-and-issue intestacy share of $50,000 plus one-half of the residue.

Exam comparison:

• no controlling will and spouse plus issue: intestacy formula;
• will leaves qualifying spouse too little: elective-share issue;
• joint or beneficiary asset: determine whether it is a testamentary substitute and how the statute applies.

These are attorney-level calculations in a transaction.

What if a devisee dies before the testator?

A testamentary gift can lapse when its beneficiary dies before the testator, but New York's anti-lapse rule can save specified gifts.

EPTL section 3-3.3 applies, unless the will provides otherwise, when the predeceased beneficiary was the testator's issue, brother or sister and left issue who survived the testator. The saved disposition passes to that surviving issue by representation under the statute.

Do not apply anti-lapse to every friend, cousin or unrelated beneficiary. Match the relationship and will language to the statute.

What if two people die close together?

EPTL section 2-1.6 generally treats a person who is not established by clear and convincing evidence to have survived another person or relevant event by 120 hours as having predeceased, subject to the statute's exceptions and governing-instrument terms.

The rule can affect intestacy, wills and survivorship ownership. A governing instrument can contain an operative different survival clause. The statute also includes an exception when applying the 120-hour rule would cause the intestate estate to pass to the state.

Exam cue: do not decide a common-disaster question from assumed order of death when the 120-hour rule or document language is supplied.

When does title to New York real property vest after death?

New York decisions state that title to real property technically vests at death in the devisees or, on intestacy, the distributees. That vesting is subject to estate administration and the fiduciary's statutory or court-authorized powers.

For intestacy, U.S. Bank Trust, N.A. v Gedeon, 181 AD3d 745 (2d Dept 2020), states that title automatically vests in the distributees. The decision also shows why identifying every distributee and the estate representative can matter in litigation.

For a devise, Rhiney v Rhiney, decided April 15, 2026, explains that title vests at death but not absolutely. Once a will is admitted to probate, the devisee's title relates back to death, while the executor or administrator c.t.a. may retain authority to sell under the will, statute and court orders.

The safe exam statement is:

Title can vest at death, but the estate's debts, administration and fiduciary powers can still affect the property.

Can an executor sell estate real property?

Often, but authority depends on the will, the type of devise, the letters, the statute and any court order.

EPTL section 11-1.1(b)(5) gives a fiduciary default powers over estate or trust property that is not specifically disposed of, including possession, management and sale at public or private sale on terms the fiduciary considers advantageous to interested persons. The instrument can alter those powers.

If the property is specifically devised or the will restricts sale, court approval may be required. Section 11-1.1(b)(5)(E) allows the Surrogate to approve otherwise prohibited action when needed for a purpose stated in SCPA 1902.

SCPA 1902 includes estate-administration expenses, funeral expenses, decedent debts, taxes, charged debts or legacies, distribution of shares and another purpose the court deems necessary.

Do not reduce this to “executor can sell any house.” First verify the authority.

What did Rhiney v Rhiney add in 2026?

The April 2026 Appellate Division decision addressed a transfer by an administrator c.t.a. of specifically devised real property. It rejected the claim that vesting at death necessarily made the fiduciary's deed void from the outset. The court explained that a court-appointed fiduciary can have apparent authority and that New York law permits estate real property to be sold in circumstances not stated in the devise, subject to the governing requirements.

The exam lesson is narrower than the litigation holding:

• title vesting and fiduciary sale power can coexist;
• a specific devise changes the authority analysis;
• letters and court orders matter;
• an executor's deed should not be accepted or rejected from its label alone.

This is one reason title companies and estate attorneys review the complete Surrogate's Court record.

What is an executor's deed?

An executor's deed is the conveyance executed by the authorized executor for an estate sale. The deed reflects fiduciary authority; it is not a personal deed from the decedent.

The buyer and title professionals should verify:

• the decedent's ownership and legal description;
• the admitted will and any specific devise;
• current letters testamentary and restrictions;
• the executor's statutory and will-based power;
• required Surrogate's Court approval;
• estate debts, liens and title exceptions;
• the contract and deed execution.

Review the New York deed-form comparison for the covenant language in executor, referee, bargain and sale, warranty and quitclaim deeds.

Does a small-estate proceeding cover real property?

The statewide small-estate procedure, also called voluntary administration, has important limits. The New York County Surrogate's Court administration and small-estates guide states that voluntary administration excludes authority to administer real property such as a house, land or condominium.

Avoid assuming that a small-estate affidavit authorizes a sale of the decedent's New York house. Real property can require a different estate proceeding and authority even when personal property qualifies for the simplified procedure.

What is escheat?

Escheat is the reversion of land to the People of the State of New York when title fails because there is no lawful heir.

The direct rule is in Abandoned Property Law section 200:

All lands whose title fails from a defect of heirs revert, or escheat, to the people.

EPTL section 4-1.1 lists the intestacy classes but does not contain an invented paragraph (a)(8) for escheat. Cite the correct statute.

Escheat is uncommon because New York's intestacy ladder reaches remote relatives. It becomes relevant only after the absence of a valid taker is established through proper search and estate procedure.

Is escheat the same as unclaimed funds?

No. Real-property escheat under Abandoned Property Law section 200 concerns land whose title fails for defect of heirs. Unclaimed funds involve money or other property held for an owner and transferred to state custody after the applicable dormancy and reporting process.

The New York State Comptroller's unclaimed funds program states that owners may search and claim covered property and that there is no fee or time limit to file a claim. The state's custody of claimable funds is not the same exam concept as land reverting for lack of heirs.

Is escheat the same as foreclosure or condemnation?

No.

• Escheat: land passes to the state because title fails for lack of heirs.
• Foreclosure: a lien is enforced through the legal process, potentially resulting in a sale.
• Condemnation: government uses eminent domain to acquire property for a public use with the compensation required by law.
• Tax enforcement: government enforces unpaid real-property tax obligations under the applicable process.

The state can become connected to property in each setting, but the source of authority and legal consequence differ.

How should a salesperson handle estate-owned property?

Use a document-first process:

1. obtain the deed and identify how the decedent held title;
2. determine whether another owner has a survivorship claim;
3. ask whether a will has been admitted to probate;
4. obtain the decree, current letters and any restrictions;
5. identify every devise or intestacy issue affecting the parcel;
6. confirm the fiduciary's power to list, contract and convey;
7. involve the representative broker, estate attorney and title company before accepting signatures;
8. disclose known property conditions without giving estate-law advice;
9. keep the contract parties and signature capacity consistent with counsel's instructions;
10. preserve the court and title documents in the transaction record.

A death certificate alone does not show who may sign. A will alone does not prove it was admitted. Letters alone may not answer whether a specific devise or court restriction applies.

What are the most common misconceptions?

Misconception 1: A person named executor can sign immediately

The will nominates. Letters testamentary evidence the court-authorized executor's status.

Misconception 2: Every asset passes through the will

Survivorship ownership, transfer-on-death deeds, beneficiary designations, trusts and completed lifetime transfers can pass outside the will.

Misconception 3: Testate and intestate cannot occur together

A valid will can dispose of part of the probate estate and leave another part to intestacy.

Misconception 4: Beneficiary and distributee are interchangeable

Beneficiary is a broader term for a person entitled to an estate interest. Distributee specifically identifies a person entitled under the intestacy statutes.

Misconception 5: Probate transfers every title

Title can vest at death, but probate establishes the will and letters establish fiduciary authority. Estate powers and obligations can still affect the property.

Misconception 6: An executor's deed proves unrestricted authority

The title review must examine the will, letters, statutory powers, court orders and specific devise.

Misconception 7: Escheat is paragraph eight of EPTL 4-1.1

EPTL 4-1.1 ends its listed intestacy classes at paragraph seven. The land-escheat rule is in Abandoned Property Law section 200.

Misconception 8: Unclaimed funds and escheated land are identical

Unclaimed funds remain claimable through the Comptroller's process. Escheat of land is a title consequence tied to lack of heirs.

Misconception 9: A signed transfer-on-death deed works even if it is not recorded

Real Property Law section 424 requires the TOD deed to be recorded before the transferor's death in the county where the property is located.

Misconception 10: A beneficiary owns the property as soon as the TOD deed is recorded

The designated beneficiary receives no legal or equitable interest during the transferor's life. The owner remains free to transfer or encumber the property.

Can you apply the rules to original scenarios?

Scenario 1: The named niece

A valid will leaves a Queens townhouse to the testator's niece. The owner dies and the will is admitted to probate.

Best answer: the gift is a devise and the niece is the devisee. Estate administration can still affect the property.

Scenario 2: No will, spouse and two children

An owner dies intestate with a spouse and two children.

Best answer: the spouse receives $50,000 plus one-half of the residue. The issue receive the balance by representation, after the statutory deductions and subject to estate administration.

Scenario 3: The unsigned listing agreement

A son is named executor in an unprobated will and wants to sign the listing agreement as executor. No letters have issued.

Best answer: being named does not establish current fiduciary authority. Refer the matter and obtain the Surrogate's Court documents.

Scenario 4: The surviving joint tenant

Two owners hold title as joint tenants with right of survivorship. One dies and leaves the property to a friend by will.

Best answer: the survivorship ownership can pass the deceased owner's interest to the surviving joint tenant outside the will. Verify the deed and title record.

Scenario 5: The forgotten parcel

A will devises the decedent's primary residence but says nothing about a vacant parcel and has no effective residuary disposition covering it.

Best answer: the residence can pass by devise. The vacant parcel can pass by intestate descent.

Scenario 6: The predeceased sister

A will leaves a house to the testator's sister. The sister dies first, leaving children who survive the testator, and the will does not provide a contrary result.

Best answer: New York's anti-lapse statute may preserve the devise for the sister's surviving issue by representation.

Scenario 7: No lawful heir

An owner dies without a valid will, and the estate proceeding establishes no qualifying distributee in the statutory classes.

Best answer: land may escheat to the People of the State of New York under Abandoned Property Law section 200.

Scenario 8: Specifically devised property and estate debts

A will specifically devises an apartment building, but the estate lacks other assets to pay administration expenses and debts.

Best answer: the devisee's vesting is subject to estate obligations. A fiduciary may seek Surrogate's Court authority under EPTL 11-1.1 and SCPA article 19 to sell as required.

Scenario 9: Recorded transfer-on-death deed

An owner records a TOD deed naming a daughter, then later mortgages the property. The daughter survives the owner.

Best answer: the TOD deed can transfer the interest at death, but the daughter takes subject to the mortgage and other interests affecting the property at that time.

Scenario 10: Unrecorded transfer-on-death deed

An owner signs and notarizes a TOD deed with two witnesses but dies before it is recorded.

Best answer: it does not satisfy Real Property Law section 424 because recording before the transferor's death is required.

What should you memorize?

Memorize these short rules:

• testate means a valid will governs;
• intestate means no valid will governs the property at issue;
• devise is real property by will;
• bequest or legacy is personal property by will;
• devisee receives real property under a will;
• distributee receives under intestacy law;
• probate proves the will;
• administration handles an intestate estate;
• nominated executor becomes executor when letters issue;
• spouse plus issue means $50,000 plus half the residue to spouse, balance to issue by representation;
• title can vest at death subject to estate administration;
• a New York transfer-on-death deed is revocable, nontestamentary and must be recorded before death;
• a TOD beneficiary has no property interest during the transferor's life and takes subject to interests affecting the property at death;
• fiduciary sale authority depends on the will, statute, letters and court orders;
• escheat of land is in Abandoned Property Law section 200;
• electronic-will provisions take effect December 12, 2027, not August 2026.

Can you test yourself?

Question 1

What is a transfer of real property by will?

A. Bequest
B. Devise
C. Descent
D. Dedication

Answer: B. A devise transfers real property by will.

Question 2

Who is a distributee?

A. Any person named in a deed
B. A person entitled under intestacy statutes
C. Only the executor
D. A mortgage lender

Answer: B. New York defines a distributee by the descent and distribution statutes.

Question 3

An owner dies intestate leaving a spouse and no issue. Who receives the intestate estate under EPTL 4-1.1?

A. The spouse receives the whole
B. The spouse receives one-half
C. The parents receive the whole
D. The state receives the whole

Answer: A. A spouse and no issue results in the whole passing to the spouse, subject to the estate's proper deductions and administration.

Question 4

What document is the core evidence that a nominated executor has received court authority?

A. Listing agreement
B. Death certificate
C. Letters testamentary
D. Tax bill

Answer: C. SCPA 703 makes letters evidence of the fiduciary's authority.

Question 5

Where is New York's direct escheat rule for land whose title fails from a defect of heirs?

A. EPTL 4-1.1(a)(8)
B. Abandoned Property Law section 200
C. Real Property Law section 258
D. SCPA section 103

Answer: B. EPTL 4-1.1 has no paragraph (a)(8). Abandoned Property Law section 200 states the land-escheat rule.

Question 6

A valid joint tenancy contains a right of survivorship. One owner dies and wills the interest to a friend. Which fact matters first?

A. The friend's address
B. The survivorship ownership
C. The listing price
D. The acreage

Answer: B. A valid survivorship interest can pass outside the will.

Question 7

Which statement about estate real property is most accurate?

A. Title vesting at death eliminates every fiduciary power
B. An executor may sell any specifically devised property without review
C. Title can vest at death subject to administration and authorized fiduciary sale powers
D. A death certificate authorizes a broker to sign the deed

Answer: C. Vesting, estate obligations and fiduciary powers must be analyzed together.

Question 8

Which fact is essential for a New York transfer-on-death deed to operate at the transferor's death?

A. The beneficiary must pay consideration
B. The deed must be recorded before the transferor dies
C. The deed must be admitted to probate
D. The beneficiary must take possession during the transferor's life

Answer: B. Real Property Law section 424 requires pre-death recording in the county clerk's office where the property is located.

Question 9

What interest does a designated beneficiary receive when a valid transfer-on-death deed is recorded during the owner's life?

A. Immediate fee-simple title
B. A present equitable lien
C. No legal or equitable interest during the owner's life
D. A right to prevent the owner from selling

Answer: C. The statute preserves the transferor's lifetime ownership and power to transfer or encumber the property.

Frequently asked questions

What is the difference between descent and devise?

Devise transfers real property under a valid will. Descent passes real property under intestacy law when no valid will disposes of it.

What is the difference between an executor and administrator?

An executor receives letters testamentary in a probate proceeding. An administrator receives letters of administration, commonly when there is no will governing the estate.

Does a will avoid probate in New York?

A will does not by itself avoid probate. When it must control probate assets, it is presented so the Surrogate's Court can determine validity and issue authority to the fiduciary.

Can a New York estate be partly testate and partly intestate?

Yes. Property effectively disposed of by the will follows the will. Undisposed probate property follows EPTL 4-1.1.

Does a spouse receive everything when someone dies without a will?

A qualifying spouse receives the whole only if there is no issue. If a spouse and issue survive, the current statute gives the spouse $50,000 plus one-half of the residue and gives the balance to issue by representation.

Does an executor own the estate's real property?

Title can vest in devisees at death, but the executor has fiduciary powers over estate property under the will and law. Ownership and authority to administer or sell are related but distinct.

Can heirs sell property before an administrator is appointed?

Title may vest in distributees at death, but a sale requires clear identification of every owner and resolution of estate authority, debts and title issues. The parties should use estate counsel and a title company.

Is an executor's deed a warranty deed?

No. It is a fiduciary deed based on the executor's authority. Its statutory covenant and title implications differ from a deed with full covenants.

Does New York allow transfer-on-death deeds?

Yes. Real Property Law section 424 authorizes a revocable transfer-on-death deed. It must satisfy the statutory deed, two-witness, notary and pre-death recording requirements.

Does a New York transfer-on-death deed give the beneficiary ownership immediately?

No. The beneficiary has no legal or equitable interest under the TOD deed while the transferor is alive. The transferor can still sell, mortgage or revoke through an authorized recorded instrument.

Does a New York transfer-on-death deed require probate?

The transfer under a properly executed and recorded TOD deed occurs at death without probate. The property remains subject to interests affecting it at death and to the statute's limited estate-claim rules.

When does real property escheat in New York?

Land can escheat when title fails because there is no lawful heir. It is a last-resort result under Abandoned Property Law section 200.

Are electronic wills valid in New York in August 2026?

The enacted electronic-will provisions are scheduled to take effect December 12, 2027. They are not yet effective on this article's August 27, 2026 review date.

What is the final decision rule?

Use this sentence:

Identify how title was held, determine whether the asset passes by survivorship, will or intestacy, verify the court-authorized fiduciary and sale power, then apply escheat only after the absence of a lawful heir is established.

That rule connects the vocabulary to the transaction and exam decision.

Sources and verification notes

This guide was checked against primary New York statutes, court guidance and reported decisions available on August 27, 2026. It is independent exam preparation and not estate planning, title advice or legal advice.

• New York State Department of State, Real Estate Salesperson 77-Hour Curriculum
• Surrogate's Court Procedure Act section 103
• Surrogate's Court Procedure Act section 703
• Surrogate's Court Procedure Act section 1001
• Surrogate's Court Procedure Act section 1902
• Estates, Powers and Trusts Law section 1-2.10
• Estates, Powers and Trusts Law section 1-2.16
• Estates, Powers and Trusts Law section 1-2.19
• Estates, Powers and Trusts Law section 2-1.6
• Estates, Powers and Trusts Law section 3-1.1
• Estates, Powers and Trusts Law section 3-2.1
• Estates, Powers and Trusts Law section 3-3.3
• Estates, Powers and Trusts Law section 3-4.1
• Estates, Powers and Trusts Law section 4-1.1
• Estates, Powers and Trusts Law section 4-1.2
• Estates, Powers and Trusts Law section 4-1.3
• Estates, Powers and Trusts Law section 4-1.4
• Estates, Powers and Trusts Law section 5-1.1-A
• Estates, Powers and Trusts Law section 5-1.2
• Estates, Powers and Trusts Law section 11-1.1
• Estates, Powers and Trusts Law section 13-1.3
• Real Property Law section 424
• New York State Department of Taxation and Finance, RP-5217 Frequently Asked Questions
• Abandoned Property Law section 200
• New York Courts, Fiduciary of an Estate
• New York Courts, Surrogate's Court Overview
• Rhiney v Rhiney, 2026 NY Slip Op 02428
• U.S. Bank Trust, N.A. v Gedeon, 181 AD3d 745 (2d Dept 2020)
• New York State Comptroller, Unclaimed Funds