When you're buying a home, there are SO many things to think about, consider and manage, that by the time the closing attorney asks you how you'd like to take title of your new home, you may be tempted to just throw up your hands and say "whatever you think is best."
We feel your pain, so we checked in with real estate attorney John Spino of Spino Law Offices, P.C. for the scoop. Here's what we learned:
John Spino: Many people assume when they're buying a home with their spouse that when one of them dies, the surviving spouse automatically owns the home.
Unfortunately, this is not necessarily true -- it depends on the type of ownership you and your spouse elected at the time you took title to the property (how your name is listed on the deed). Under Massachusetts law, real estate owned by more than one person may be owned as either:
- Tenants in Common,
- Joint Tenants with the Right of Survivorship, or
- Tenants by the Entirety (reserved for married couples only).
The type of ownership you and your spouse choose to place on the deed determines who owns the house upon a death. It is important to note that just because you are married does NOT mean you hold title as Tenants by the Entirety - as stated, it is an election.
As Tenants in Common, each person owns their interest in the property individually with no right of survivorship and the deceased person's interest passes to his or her heir(s) as designated, and not to the co-owner. To establish the new owner(s), the estate of the deceased must go through the probate process before the real estate may be sold or mortgaged. This process may take up to twelve months, leaving the survivor in limbo for that period of time.
If title is held as either Joint Tenants with the Right of Survivorship or Tenants by the Entirety, then ownership passes to the survivor on the death of the co-owner.
These same options apply for unmarried and same-sex couples -- if a same-sex couple is married, Tenant by the Entirety is also available. Single people buying property will own their home as an individual and upon death, their interest in the home will have to be probated so it can pass to the designated heir(s). If you have a will, you can determine who that is. Without a will, the Massachusetts Intestate statutes will determine who (next of kin) will receive your property.
In all cases the death of an owner of real estate, whether Tenants in Common, Joint Tenants, Tenants by the Entirety, or Individual, will likely require that the surviving owner(s) procure a release of the estate tax or taxes which by statute automatically becomes a lien on the property upon the death of an owner.
This is a basic overview and other variables may be at play in your case. Be sure to call us at Spino Law Offices, P.C. or consult a trusted legal advisor before making this determination.
Spino Law Offices, P.C. is a Massachusetts law firm with offices in Wakefield and Newton and specializes in real estate law, estate planning, probate law and business law. John Spino can be reached at 781-213-3060 or firstname.lastname@example.org.