A Deed is a document that determines the ownership of real estate.  When you purchase your home or other real estate, or if property is given to you, the person transferring the property to you (the Grantor) gives you (the Grantee) a Deed to the property, which is signed by the Grantor and recorded at the Registry of Deeds.  For most people, that is the last time they look at their Deed.

In the old days, an original Deed (or Certificate of Title for registered land) was an important document, and people often kept them in their safe deposit box.  Over the past decade, land records in Massachusetts have become fully electronic.  Once a Deed is recorded at the Registry of Deeds, the electronic copy of that document is the one that matters.

It is possible for you to look at the most recent Deed to your property (or to your neighbor’s property for that matter), your most recent mortgage, homestead, or any other document that has been recorded at the Registry of Deeds on the website for the Registry of Deeds for the county in which your property is located.  Go to www.masslandrecords.com, select your county from the state map, and then search for your name.  

From an estate planning perspective, your Deed determines the ownership of what is probably your most valuable asset – your home.  As part of creating an estate plan, your estate planning attorney should review your Deed to make sure the way your property is owned is consistent with your estate planning goals.  

There are various ways to own real estate in Massachusetts if two or more people own property, and the form of tenancy is generally noted after the name of the Grantee.  For example:

• A Deed to “John Smith and Jane Smith as tenants in common” means that John and Jane each own a 50% interest in the property independent of each other.  If John dies, his interest will not pass to Jane, and will instead pass according to his Will, or if he does not have a Will according to the intestate laws.
• A Deed to “John Smith and Jane Smith as joint tenants with rights of survivorship” means that if John or Jane dies, his or her interest will pass automatically to the surviving owner, and will not be controlled by the provisions of John or Jane’s Will.  
• A Deed to “John Smith and Jane Smith, husband and wife as tenants by the entirety” is the form of joint ownership for married couples in Massachusetts, and as above in the case of “joint tenants”, the property will pass to the surviving spouse on the death of the first spouse.
• A Deed to “John Smith and Jane Smith”, with no tenancy indicated after the names of the Grantees, means the property is owned as tenants in common.  Not indicating a tenancy on a Deed to two or more people is often an oversight that can have serious consequences.  A probate proceeding will be required at the death of an owner of the property.  This is particularly unfortunate when the lack of tenancy on the Deed goes unnoticed until just prior to the sale of the property, in which case the sale will be significantly delayed, if not lost, until a probate proceeding is commenced and a Personal Representative can be appointed for the deceased owner’s estate.

For estate planning purposes, property may be transferred from an individual’s name to a Trust to avoid probate, or for estate tax savings or asset protection reasons.  However, if your Deed is and will remain in your individual name, it is important to make sure the way you own your property is consistent with your planning goals.

It is important that the Deed to your property not be changed by anyone but an attorney who is experienced in real estate matters.  Mistakes in the names of the Grantor or the Grantee, in the type of tenancy indicated, or in the legal description of the property being purchased or transferred, can create serious title issues, delays, expense and no end of headaches.    

I was recently surprised to hear from a client that a bank, in connection with a mortgage loan transaction, changed the deed to the client’s property to add a child on to the deed.  This change, although accomplishing the bank’s objectives regarding the mortgage transaction, changed the manner in which the property will be owned following the client’s death in a way that was not at all consistent with the client’s wishes or the client’s estate plan.  Transferring title to real estate falls under the category of things you should not undertake on your own, nor should you sign a Deed prepared by someone else without having an attorney review the Deed and discuss with you any implications of the change in ownership.

Changing a Deed can also have tax implications, can expose the property to the creditors of a new owner, and can void Homestead protection.  There is no end to the headaches and unintended consequences that can result from changes to your Deed, whether properly drafted or not.  Take a look at the Deed to your home, make sure that the ownership reflected on the Deed reflects your wishes, and if it does not, or if you are not sure, ask your estate planning attorney to review it with you to be sure it is consistent with your planning goals for that property.

Maria Baler, Esq. is an estate planning and elder law attorney and partner at Samuel, Sayward & Baler LLC, a law firm based in Dedham. She is also a former director of the Massachusetts Chapter of the National Academy of Elder Law Attorneys (MassNAELA), and the immediate past President of the Board of Directors of the Massachusetts Forum of Estate Planning Attorneys. For more information, visit www.ssbllc.com or call (781) 461-1020. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney.

June 2022

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