Friday, April 12, 2013

What your deed says about survivorship

Holding title to real estate as tenants by the entirety is a tool for married people to guaranty that ownership passes to a surviving spouse outside of any probate proceedings. Part of a lawyer’s job when representing a couple when they are purchasing their home is to make sure that they are aware of this option. For people who are not married, holding title as joint tenants serves the same purpose. While a survivor will need to deal with death tax liens, the property will not need to be part of the probate inventory.

M.G.L. c. 184, § 7Creation of estate in common, joint tenancy or tenancy by the entirety” is the statutory authority.

If this is what you want, you can check your deed to make sure that the grantee clause reads “grants to [You] and [Your spouse], as tenants by the entirety” or “to [You] and [the Co-owner(s)], as joint tenants.” Without this clause or something in the deed indicating an intent to hold the property jointly, the real estate will be held as tenants in common. In that case, each undivided share upon the death of one party will pass to the deceased’s heirs. A tenant in common’s share will need to go through probate proceedings.

You can get a copy of your deed from your local Registry of Deeds. Contact information for Registry of Deeds offices in Massachusetts is searchable by your city/town. Once you know your Registry of Deeds Division, you may be able to find a copy of your deed at masslandrecords.