Owning real estate is not as straightforward as it might initially appear. The method you choose to hold property can drastically influence your rights to the property, responsibilities, and potential consequences. Today, we’ll delve into the three most prevalent ways to own real estate in Massachusetts, highlighting the implications of each method, with our focus keyword being “Real Estate Ownership.” If we can help you with your legal needs, please contact us.
Tenants in Common
Tenants in Common is the first form of real estate ownership we’ll discuss. This is the default form of tenancy unless another type is explicitly stated. Under this arrangement, multiple individuals can own an undivided interest in the property.
Control and Management in Tenants in Common
In a Tenants in Common agreement, all owners have equal rights to the property’s control, management, and profits, unless stated otherwise in a separate agreement. Each individual owner is also free to transfer their share in the property independently.
What Happens After a Tenant in Common’s Death?
When one of the owners dies, their portion of the property does not automatically transfer to the surviving owners. Instead, the deceased owner’s share needs to go through probate before it can be sold or mortgaged. This process can be time-consuming and costly, and the deceased owner’s share could potentially be inherited by someone the other owners do not know or wish to share ownership with.
Joint Tenants
The second form of real estate ownership is Joint Tenancy. This form of ownership gives each owner an equal undivided interest in the property.
Joint Tenants’ Control and Management
In a Joint Tenancy agreement, all co-owners share equal control, management, and profits from the property. Similar to Tenants in Common, any co-owner can sell their individual share independently unless otherwise agreed upon.
The Implications of a Joint Tenant’s Death
Unlike Tenants in Common, Joint Tenancy incorporates the right of survivorship. This means that upon an owner’s death, their share of the property automatically transfers to the surviving owners. Therefore, it isn’t necessary to probate the deceased owner’s estate before selling or mortgaging the property.
Tenants by the Entirety
The third and final form of real estate ownership we’ll explore is Tenants by the Entirety. This form of ownership is specific to married couples, offering extra protections and benefits.
Control and Management for Tenants by the Entirety
When real estate is held as Tenants by the Entirety, both spouses equally share the control, management, and profits from the property. However, neither spouse can transfer their interest in the property to anyone else (except to each other) without the other’s signature, as long as the marriage lasts.
Upon the Death of a Tenant by the Entirety
In the event of one spouse’s death, the surviving spouse automatically inherits the deceased’s interest in the property, eliminating the need for probate.
Additional Creditor Protections
The Tenants by the Entirety form of ownership provides additional creditor protections. According to Massachusetts General Law Chapter 209, the interest of a debtor spouse in the property isn’t subject to seizure by a creditor as long as the property remains the non-debtor spouse’s primary residence.
Estate Tax Considerations
Regardless of the form of ownership, when an owner dies, an estate tax lien automatically attaches to the property in Massachusetts. This lien must be released before selling or mortgaging the property, regardless of whether the title is held as Tenants in Common, Joint Tenants, or Tenants by the Entirety.
Conclusion
Deciding how to hold real estate is not a decision to be taken lightly. It’s crucial to understand the implications of each form of ownership and the potential future consequences. The choice between Tenants in Common, Joint Tenants, and Tenants by the Entirety can significantly impact the control, management, and transfer of the property and the process following an owner’s death.
In summary, Tenants in Common offers flexibility in transferring individual shares but does not offer the right of survivorship. On the other hand, Joint Tenancy incorporates the right of survivorship, allowing for an automatic transfer of ownership upon an owner’s death. Finally, Tenants by the Entirety, exclusively for married couples, provides additional creditor protections and ensures the property’s entirety passes onto the surviving spouse.
Understanding the “Real Estate Ownership” landscape can seem overwhelming, but with the right knowledge and guidance, you can make an informed decision that best fits your circumstances and goals. Contact us if we can help you with your legal needs.
