When you own property jointly with another person, you will have to choose how to take title. Common ways to take title include tenancy in common, joint tenancy, and tenancy by the entirety. These different forms of tenancy have different ramifications upon the death of one owner. Some people take title in a particular way without considering the consequences. One reason it is important to consult an experienced attorney is to make sure you understand the different forms of tenancy and which will work best in your particular situation. For co-owners who want a right of survivorship, for example, a joint tenancy or a tenancy by the entirety may be the best option. The Boston real estate lawyers at Pulgini & Norton can answer your questions and guide you through a residential property transaction.
The Right of SurvivorshipWhen you own property jointly with someone else in a joint tenancy, your ownership includes a right of survivorship. This means that if one owner of the property dies, the other one will automatically own the property. A joint tenancy can be applied to real estate, vehicles, bank accounts, and other types of property in which each owner owns an equal share. A joint tenancy and the accompanying right of survivorship will not apply if the owners own different shares.
The key to the right of survivorship is that it will not be necessary for the property to go through probate to transfer the property. The ownership transfers by operation of law outside probate. Often, probate is time-consuming and expensive, and many property owners would prefer to avoid it.
However, there can be disadvantages to a right of survivorship as well. For example, if you and your spouse want the property to pass to the other and then to your kids, you may encounter some difficulties with a joint tenancy. For example, if you die first, the real estate will pass to your spouse. If your spouse remarries and holds the property as a tenancy by the entirety with his or her new spouse, the property will pass to your spouse's new partner, rather than to your children.
In Massachusetts, a tenancy by the entirety also has a right of survivorship, but this form of joint ownership is only permitted for married couples. It is treated quite similarly to a joint tenancy with a right of survivorship. If your spouse dies, your interest automatically transfers to you. An added bonus is that, unlike the other forms of joint ownership, a creditor cannot force you to sell property for a debt incurred by your spouse as long as both of you are alive and your marriage remains in place.
In contrast, when two people jointly own property as tenants in common, they can own different percentages or shares, and the property will not automatically pass through a right of survivorship.
Retain an Experienced Real Estate Lawyer in BostonAt Pulgini & Norton, our Boston real estate attorneys can advise you on whether a joint tenancy with a right of survivorship is a sound choice for you and a co-owner of residential property. We can represent you in any legal proceedings involving your home, including through all of the stages of a real estate transaction from securing a mortgage through the closing. Our property transaction attorneys also advise and represent people in Weymouth, Hyde Park, Newton, and other cities in Massachusetts. Call us at 781-843-2200 or contact us via our online form for a free consultation.