More than one person may hold title to real estate. The way in which owners hold title can make a difference to whether creditors can attach the property and what happens procedurally in the event of one owner's death. There are three common ways that two or more people can hold title: joint tenants, tenants in common, or tenants by the entirety. When joint tenants hold the title, it automatically passes to a surviving owner without the need for probate. However, no matter how the property is held, it may be necessary for a survivor to get a release of the estate taxes, which can become a lien on the property. At Pulgini & Norton, our real estate lawyers can advise people in Boston and the surrounding cities on the implications of holding property in a joint tenancy.Advantages and Disadvantages of a Joint Tenancy
Each homeowner in a joint tenancy gets an equal ownership interest in the real estate. For example, if a property has four owners, each gets a one-fourth interest. When a joint tenant passes away, the remaining joint tenants continue owning the real estate because they have a "right of survivorship." Upon death, the decedent's interest immediately terminates, and the remaining joint tenants own the real estate. Eventually, the last surviving joint tenant owns the entire property. Often, family members or married couples hold property in a joint tenancy.
Among the advantages of a joint tenancy is that if a joint tenant is incapacitated or passes away, the other owners can avoid probate. As long as there is at least one joint tenant who has survived, there will be no probate. Since probate is expensive, a joint tenancy can allow owners to save money. In some cases, a sole survivor may add multiple trusted family members as joint tenants in order to make sure there is a survivor upon death and probate is avoided.
However, there are also disadvantages. While probate is avoided, joint tenants may not be able to agree on what to do with the real estate. If you add somebody as a joint tenant, he or she has equal rights of ownership, and you may lose your ability to control the distribution of the real estate. You cannot leave your interest in the real estate to someone in a will as you can with a tenancy in common. As a result, a house may pass to a surviving spouse's new spouse rather than your children, if you die first. Another disadvantage is that a creditor can pursue an interest in the property in order to collect a debt. For example, if you jointly own a house with a friend, and your friend is a reckless spender, the creditor can sue your friend in court and have the real estate partitioned and sold, even over your objection.
When land is conveyed to two or more people, except in a mortgage, devise, or conveyance in trust, the conveyance or devise must state expressly in writing that the grantees are taking title jointly, as joint tenants, or in joint tenancy, in order to create a joint tenancy. Otherwise, an estate in common will be created. However, if a conveyance is to two non-married people as tenants by the entirety, an estate in joint tenancy is created.
If the conveyance specifies that the grantee is taking jointly, this is construed as applying to all grantees, regardless of their marital status, unless there is a contrary intent expressed or implied by the transfer instrument. Joint tenants have equal rights to rent, control, manage, and possess the real estate.Enlist a Boston Lawyer to Protect Your Property Interests
The Boston attorneys at Pulgini & Norton can assist people contemplating a home purchase or sale. We provide experienced legal representation related to real estate matters in Newton, Waltham, Quincy, and other cities in Massachusetts. Call us at 781-843-2200 or contact us via our online form to schedule a free consultation.