The deed that a client has needs careful review to know what their ownership interest is in the property. Their ownership interest and the timing of any transfer would have significant impact on long term care concerns.
Owners of property held as Tenants in Common have distinct and separate interests in the real property. Each owner shares a right of possession. Either owner may convey their interest in the property to another person without the consent of the other. There are no rights of survivorship to property held as tenants in common. When an owner dies, their share does not automatically transfer to the surviving owner. Their property is required to transfer to their heirs pursuant to their estate plan. If the deed is silent as to how the property is held, the statutory default is that the property is held as Tenants in Common.
Owners of property held as Joint Tenants hold equal and undivided interests in the real property. As a joint tenant they are entitled to a right of survivorship. When a joint tenant dies, their interest automatically transfers to the surviving joint tenants. A joint tenant may also transfer its interest in jointly held property without the consent of the remaining joint tenant owners. A transfer by a joint tenant will sever the joint tenancy and the resulting ownership interest will be tenancy in common as described above.
Owners of property held as Joint Tenants with Rights of Survivorship hold equal and undivided interest in the real property. As a joint tenant with rights of survivorship, their interest automatically transfers to the surviving joint tenants. An owner as joint tenants with rights of survivorship, however, cannot transfer their interest without the consent and signature of the other joint owners.
Tenants by the Entireties, is joint ownership in real property held exclusively between spouses and includes a right of survivorship. Only spouses may hold property as tenants by the entireties. This characteristic of tenancy by the entireties property provides certain protection from judgment creditors.
Lady Bird Deed, is a form of deed wherein the ownership of the property is not transferred until the death of the last of the grantors. Different from a traditional life estate deed wherein ownership is transferred at the time the deed is executed, and the grantor reserves the right to occupy the real estate until death. With a Ladybird Deed, the property is not subject to probate on the death of the last Grantor, and the transfer to the remaindermen or their Revocable Living Trust is completed with the recording of the death certificate.
Burgess and Sweeney Law, P.C. continue to advise clients on estate planning, elder law, Medicaid planning, probate and trust administration, guardianships and conservatorships, business law, and real estate. As a result of the constantly changing laws in these areas, the information provided may change. We would be pleased to discuss this, or any other issues, in more detail.
