In Massachusetts, real estate sales can become complicated when an owner passes away. Sometimes very little is necessary in order to validate a transfer of a survivor-owner of the real estate.  Other times it may take months to clear the title through the probate process in order to allow the property to be transferred out of the name of a decedent. It is therefore important for the real estate agent and the Buyer or Seller of real estate to understand these complexities so that any additional time or expenses can be anticipated during the contract negotiation stage, rather than reacted to as an unforeseen surprise/delay just prior to closing. . .

How Title is transferred:

The most usual way that title is transferred is voluntarily through a written instrument called a “deed”. Any person or entity that owns real property can grant their interest ( as a “grantor”) in the real property to another person or entity who accepts the property (“grantee”). If more than one person own real estate than all owners must execute a deed to the new owner if the new owner is to receive 100% interest in the property. The basic rule is this: Everyone who is listed on the deed as a person who is receiving the property, (“grantee”) must sign a deed into the new owner. This includes anyone who has reserved any rights as a grantor. In the example deed below, the Grantees are underlined, as is the reservation of rights in the grantor:

Example Deed:

                                                                                                Book 13435, Page 245

                                                                                                Rec: 06/05/2007

Quitclaim Deed

Know all men by these presents that George S. Jones and Jennifer C. Jones both of 123 Any Street, Any Town, Hampden County, MA, 00000 in consideration of less than one hundred dollars grant to

Mark C. Jones and Samantha J. Weston-Jones, both of 456 Another Street, Another Town, Hampden, MA 00000 as joint tenants with rights of survivorship (the tenancy could also be silent, listed as “tenants in common” or “tenants by the entirety”)

The land located in Any Town, Hampden County , MA known and numbered as 123 Any Street, Any Town, Hampden County, MA, more particularly described in Exhibit “A” attached hereto

Grantors herein reserve a life estate.

Being the same premises conveyed to the Grantor’s herein by Deed dated January 1, 2008 and recorded with the Hampden County Registry of Deeds in Book 12345, Page 123. Executed as a sealed instrument this 31st day of July, 2008

_______________________                                     _____________________________

Witness                                                            George S. Jones

________________________                                    _______________________________

Witness                                                             Jennifer C. Jones

COMMONWEALTH OF MASSACHUSETTS

Hampden, ss                                                                                         July 31, 2008

On this 31st day of July, 2008, before me, the undersigned notary public, personally appeared George S. Jones and Jennifer C. Jones, proved to me through satisfactory evidence of identification, which was a Massachusetts Drivers License, to be the person whose name is signed on the preceding or attached document, and acknowledged to me that they signed it voluntarily for its stated purpose.

                                                                                             ________________________________                                                                                                     Nyles L. Courchesne, Notary Public                                                                                                       My commission expires: 03/15/09

If you were Mark C. Jones, one of the owners of the property described in the deed listed above, you would need the participation of Samantha J. Weston-Jones, the co-owner and George S. Jones and Jennifer C. Jones who have both retained a life estate in order to transfer 100% interest in the property to a third party. All four owners would simply sign a deed and the property can be transferred. If one of the four parties had died then they obviously cannot sign. Depending on what their ownership interest is in the deed a probate of their interest may or may not be necessary.

When Probate is Not Necessary:

Many times, as in the example above a deed is written so that if someone dies, their interest automatically vests in a survivor-owner. The most common way for this survivorship interest is established is through the “tenancy” which is stated in the grantee clause of the deed. A tenancy describes what the ownership interest or rights that a person will have at the time of the death of an owner of the property. In our example above, the grantee clause is: as joint tenants with rights of survivorship. This means that if Mark and Samantha hold the property jointly with rights of survivorship. If Mark dies, his interest in the property automatically vests in Samantha and vise versa.

The second common way for a survivorship interest to be established is when a grantor in a deed retains it. This is what George and Jennifer have done in the example deed above. Toward the end of the deed they reserve a “life estate” which means they have the right to possess the property for the duration of their lives. This is a common estate-planning tool that people use. When the holder of a life estate dies, their interest in the property passes to the remaining owners. In our example, when George and Jennifer die, Mark and Samantha will own the property outright, no longer subject to the rights of George and Jennifer.

The only thing that is necessary to validate a transfer from a survivor-owner is proof of the decedent-owner’s death. This is accomplished through the recording of a death certificate at the registry of deeds. If a decedent-owner has died within 10 years of the proposed transfer to a new owner the property may also be subject to estate taxes. An affidavit or estate taxes may need to be filed in such a situation. Normally this is not a problem as the threshold for estate taxes is fairly high (As of 2008 an estate must be worth over $1,000,000.00 to be subject to estate taxes). A joint owner, executor or administrator of an estate or a person in actual possession of the property may record a simple affidavit in order to resolve this issue.

If the property is held by an individual who dies or an owner who does not have a joint tenancy, who dies, then a probate will be necessary. In my next post, I will review the types of estates that must be filed and the time-line that is necessary in each circumstance. 

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