Did you know that how you own your home during your life determines who receives it upon your death? There are several ways a person can own a home. Therefore, there are different possible outcomes concerning who receives that house upon your death.

For most of our clients, the home is their most valuable asset. So, it’s often a big surprise when folks realize the deed will override a conflicting bequest in their will regarding the disposition of real estate. If you’re the only owner on the deed (meaning there are no other persons identified as owners with you), then the real estate is a probate asset. This means that your will determines who receives that house when die. In that case, make certain your will represents your current wishes. Otherwise, that house could pass to that nephew you liked twenty years ago, but can’t stand any longer. By the way, if you don’t have a will, the state in which you live has one for you. That’s called intestate law and it’s a set of default rules about who gets your property. Finally, your home is totally exposed to a MassHealth lien if it is solely-owned by you. If that is a concern, then you should speak to one of our asset protection attorneys about options to protect the home.

If you own a home with another person, the deed gets much more complicated. This is because deeds are chock full of old legal terms that can confound a homeowner. A good elder law attorney can explain the implications of the deed. However, to get a head start, look for certain terms in that deed.

Here’s a few critical terms to look for:

Joint Tenants – If you die, your share of the house automatically passes to the other surviving owners. In that case, it doesn’t matter what your will says, a joint deed determines where the house goes, not your will. One benefit of joint ownership is that it avoids probate and may protect your home from a MassHealth lien. It’s a convenient way to pass on real estate as long as the joint owners are the persons you wish to receive your share of the property.

Tenants-in-Common – This is a deed which defers to your will. If you own your home as tenants-in-common with two other people and you die, your one-third of the house passes according to the terms of your will and not automatically to the other two owners of the house. The benefit of this type of ownership is that you can change who receives your share simply by signing a new will. The downside is that the will must be probated with court to pass your interest in the real estate interest to your heirs. That type of deed DOES NOT protect your home from a Medicaid or MassHealth lien.

Tenants by the Entirety – This is a deed which identifies that a married couple own the real estate jointly. Just like a joint tenant deed, this deed automatically passes the real estate interest of the first spouse to die to the surviving spouse. Married couples often are afforded more creditor protection in their homes compared to non-married persons owning as joint tenants. Therefore, differentiating between married couple and non-married owners is an easy way to identify whether those creditor protections apply to a certain deed.

Confused? If so, you’re normal. The important thing is to realize that you should not make assumptions about where your real estate is going when you die. It all depends on the deed. If it doesn’t reflect your wishes, it’s important to have an elder law attorney make the appropriate change to the deed or your will so your legacy is honored and protected from an estate recovery claim if you require nursing home care.