While we’re going to talk about joint tenants and tenants in common today, I just want to say the horrible bombings have made us all Boston Strong! We all deeply thank those first responders and all in law enforcement for their profound heroism.

Sometimes when our elder clients come to see us, we end up conveying the house to the children while retaining a Life Estate for the parents (we’ll discuss what Life Estate is in a later blog)

There are only two ways two or more people can own a home–we call that “real property”- the ground and whatever is permanently attached to it. Again, typically a house.

Mobile homes and manufactured homes- while they may be your “home”- are not considered “real” property. That doesn’t mean they are “unreal.” They are personal property. That mobile home, even if there is a “skirt” around the bottom edges, actually has wheels on it. It is considered a motor vehicle and the Registry of Motor Vehicles issues you a title, just like your car. A manufactured home is usually placed on leased land. There is no certificate of title, no deed– just a bill of sale to evidence ownership.

In our example we will assume there are three adult children:

Lori, Jerry, and Joe.

If a Life Estate Deed says “tenants in common,” if one of the children dies before the parents(“predeceases”), that share will go to their own estate, i.e., to their beneficiaries if they have a will, or to their heirs if they have no will.

Now if the Life Estate Deed says “joint tenants” and one of the children predeceases, the surviving children receive their deceased brother’s share. Let’s give an example here. If Joe passes away before his parents, his share goes directly to Lori and Jerry. It doesn’t matter at all what Joe’s will says.

Sometimes, either on purpose, or by mistake, the deed doesn’t say either joint tenants or tenants in common. In Massachusetts, by law, if it doesn’t say either one, it automatically is tenants in common. So be careful. A handwritten note or someone saying “Ma told me…”is not what controls. What controls is the language of the Life Estate Deed itself.

Now before we end, there is a third type of deed: it’s a sub-part of joint tenancy but it’s only available to a married couple.  We call it “tenancy by the entirety” and we’ll talk about that some other time.

Lastly we need to explicitly remind you these laws vary from state to state. So, always be sure you consult an experienced Elderlaw attorney like myself or someone with similar experience. If your attorney cannot immediately answer all your questions you probably need another attorney.

Thomas R. Mullen
Thomas R. Mullen has been an attorney since 1977 and has devoted his practice exclusively to elderlaw since 1988. He is nationally recognized as one of the foremost experts on Medicaid planning. His additional Practice areas include estate planning and trusts for disabled people, as well as assisting attorneys with Medicaid lien allocations and the Medicare Secondary Payer Act. In the Spring 2013 issue of the National Academy of Elder Law Attorneys (NAELA) Journal, Attorney Thomas R. Mullen of Quincy, Mass. was described by the Academy’s Massachusetts past president and law professor William J.Brisk as being “a prominent and innovative elderlaw attorney.”