GENERAL
CHARACTERISTICS OF DIFFERENT WAYS TO HOLD TITLE
TO REAL ESTATE
THE
FOLLOWING INFORMATION IS INTENDED ONLY TO GIVE A BRIEF
DESCRIPTION OF THE THREE COMMON WAYS OF HOLDING TITLE
AND IS NOT PROVIDED FOR THE PURPOSE OF ADVISING YOU HOW
TO TAKE TITLE.
IF
FURTHER INFORMATION IS DESIRED ABOUT CREDITORS RIGHTS
AGAINST THE TITLE. ADVANTAGES AND DISADVANTAGES WITH RESPECT
TO ESTATE PLANNING AND OTHER PRACTICALITIES. YOU SHOULD
SEEK LEGAL COUNSEL FROM YOUR ATTORNEY OR RETAIN AN ATTORNEY
FOR ADVICE IN THESE MATTERS.
In
order to properly prepare the mortgage documents we require
information from you as to how you intend to take title
to the real estate.
The
three most common ways two or more persons may hold title
to real estate are:
- TENANTS
IN COMMON
- JOINT
TENANTS
- TENANTS
BY THE ENTIRETY
What
Happens Upon Death
1. When
title is held as Tenants in Common, it is necessary to
probate the estate of the deceased before the real estate
may be sold or mortgaged. There is no right of survivorship.
2. When
the title is held Joint Tenants or as Tenants by the Entirety,
the title automatically succeeds to the surviving title
holder or title holders without the necessity to probate
the estate of the deceased before the real estate may
be sold or mortgaged.
3. In
any case of death of an owner of real estate, whether
Tenants in Common, Joint Tenants or Tenants by the Entirety,
it is necessary to procure a release of the estate tax
or taxes which automatically, by statute, become a lien
on the property.
Who has
Control and Management?
1. When
title is held as Tenants in Common or Joint Tenants, the
rents, control, management and possession of the property
is in the owners equally, in the absence of an agreement
to the contrary, but the individuals can divest themselves
of their individual share in the property without the
joining in of the others.
2. Under
the provisions of M.G.L. c.209, section 1, when title
is held as Tenants by the Entirety, (which is limited
to husband and wife) rents, control, management and possession
of property are in the owners equally. Chapter 209 further
provides:
"...The
interest of a debtor spouse in property held as tenants
by the entirety shall not be subject to seizure or execution
by a creditor of such debtor spouse so long as such property
is the principal residence of the nondebtor spouse; provided,
however, both spouses shall be liable jointly or severally
for debts incurred on account of necessaries furnished
to either spouse or to a member of their family."
"Neither
the husband nor the wife can divest themselves of their
interest in the property to any one except to each other
so long as the marriage lasts without the signature of
both."
Explanation
Of Law