Your real estate deed will not be the first thing that springs to mind after your spouse passes away. Eventually, however, it occurs to many people that have lost a spouse that they may need to do something to change the deed on their property to reflect the passing of an owner.
While there are steps you should take, they may not be what you’d expect.
Look at the Language on Your Deed
The steps required for a deed after a spouse passes away depend on the way your ownership interest is recorded. So the first thing to do is take a look at the deed. If it says you and your spouse own the property as “tenants by the entirety,” or as “joint tenants,” then that carries a right of survivorship. When one owner dies in this type of arrangement, the deceased person’s share automatically passes to the other owners.
If you and your spouse were the only ones on the deed, then you own the property outright, because the only other owner is deceased. It may seem like the next step would be removing your spouse’s name from the deed, but you can’t do that in Massachusetts. Instead, what you do is file an official copy of the death certificate at the county registry of deeds.
You may also need to file other documents if your county requires them. For instance, Norfolk county requires an affidavit stating that you were not divorced and remained married at the time of death if the property is held as tenants by the entirety. These documents will become part of the chain of title to the property showing your full ownership. The deed will remain unchanged, but it is viewed in conjunction with the death certificate.
The Situation Changes if Property is Owned as Tenants in Common
If instead of tenants by the entirety or joint tenancy, you see the words “tenants in common” on your deed, everything changes. Fortunately, this is extremely rare for property owned by married couples.
When the property is owned as tenants in common, owners do not have a right of survivorship. If one property owner dies, the deceased owner’s interests do not pass to other owners but instead pass to that owner’s heirs. That means the interest belonging to the deceased spouse may need to be probated and partial ownership interests could pass to someone else. It is a good idea to consult an attorney for assistance if you own the property as tenants in common with a deceased partner.
Release the Estate Tax Lien
Massachusetts law subjects real property to a lien for estate taxes whenever someone with an interest in the property passes away. This lien is applicable even when the property is passing to a joint owner, and it applies even if the estate is not subject to probate.
The good news is that in many cases, it will not be necessary to pay estate tax, but it is necessary to file a release of estate tax lien form with the appropriate registry of deeds. Failure to do so puts a cloud on the title for ten years. The process for releasing the tax lien varies depending on the value of the estate. In many cases, you must file an estate tax return with the state and the Department of Revenue will send an M-792 certificate. In other cases, the lien can be released by filing an affidavit.
Get the Right Advice to Avoid Costly Mistakes
The legal requirements related to real estate and probate can be simple. Mistakes can cause you to be held liable to others and can delay the settlement of essential matters.
If you need assistance with any probate, planning, or real estate issues, the team at Jordan & White is ready to assist. Just give us a call.