By: Brittany Hinojosa Citron

Buying a home is one of the most significant investments many of us will ever make, and a home is usually our biggest asset. You’re probably already thinking about Halloween decorations and turning your new property into the spookiest one on the block (hopefully you didn’t buy a haunted house!). Before you get carried away, it’s important to understand the different ways to hold title to your home. How you own your home can have substantial implications on your estate planning and whether your home will be subject to probate after your death. Here are five common ways to own your home in Massachusetts.

1. Sole Ownership

Sole ownership is where one individual holds the title to the property in their own name. The owner has full rights and control over the property and is solely responsible for any associated obligations, like property taxes or mortgages. However, if you own your home in your individual name at your death, the Personal Representative of your estate must go through probate to sell the home or otherwise transfer title.

2. Tenancy by the Entirety

Tenancy by the entirety is a special form of joint ownership that is exclusively for married couples. There are many advantages to owning your home with your spouse as tenants by the entirety. One advantage is that a tenancy by the entirety provides creditor protection for one spouse’s liabilities. In Massachusetts, a creditor of one spouse cannot reach the property so long as the other spouse is living and using the property as their principal residence.

A tenancy by the entirety also avoids probate upon the death of the first spouse. When the first spouse dies, the property automatically transfers to the surviving spouse without the need for probate.  However, keep in mind that the surviving spouse now owns the home in their individual name, and the home will be subject to probate upon the death of the surviving spouse.

3. Joint Tenancy with Right of Survivorship

A joint tenancy with right of survivorship is like a tenancy by the entirety in that it is a form of co-ownership where if one owner dies, the remaining owner becomes the surviving owner of the property without going through probate; however, it is not only for married couples. This type of ownership can be between siblings, unmarried partners, or anyone who owns property with someone else. If there are more than two owners on the house, as each remaining owner dies, the entire interest continues to be held by the surviving owners.

4. Tenants in Common

Tenants in common is another type of co-ownership where two or more individuals own property but, unlike joint tenancy, there is no right of survivorship. In other words, each owner’s share will pass according to their Will or estate plan upon death, and not automatically to the other owner. Probate may be required to transfer the deceased owner’s interest at their death.

Tenants in common is the default form of ownership for two or more owners if the deed does not state the type of ownership.

5. Through a Trust

Real property may also be owned by a trust. There are several different types of trusts, but the most common trust that will own a home is a Revocable Living Trust. Another trust that you may see owning a home is an irrevocable trust, typically for long-term care planning purposes or, less commonly, for estate tax savings purposes. 

Probate is not required at one’s death for a home that is owned by a trust, whether it is owned by a revocable trust or an irrevocable trust, because the trust is the legal owner of the home rather than the individual. The trustee can directly transfer the property to the beneficiaries according to the terms of the trust without the need for probate.

Now that you have a general idea of the types of property ownership in Massachusetts, you should look at your deed and see how your home is titled. If you don’t have a copy of your deed, you can go to your county’s Registry of Deeds website and find it in their online records. Don’t assume that you have a tenancy by the entirety with your spouse, for example, because you own your home together; you must look at your deed to see how it is titled. The deed must say “tenancy by the entirety” to have a tenancy by the entirety. The same goes for joint tenancy with right of survivorship. If your deed doesn’t say anything, then it is default ownership, and you own your home as tenants in common.

Consulting an estate planning attorney can help you choose the right form of ownership based on your specific needs and long-term goals. Understanding the differences will not only help you make informed decisions but will also ensure your property is handled according to your wishes in the future.

Attorney Brittany Hinojosa Citron is an associate attorney with the Dedham, Massachusetts, firm of Samuel, Sayward & Baler LLC which focuses on advising its clients in the areas of estate planning, estate and trust settlement and elder law matters. 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. For more information or to schedule a consultation with one of our attorneys, please call 781-461-1020. 

October 2024

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