A look at holding title to real estate

Inman News — Thursday, December 15, 2005

Tenancy by the entireties is a special version of holding title as joint tenancy with right of survivorship. It is allowed only when a husband and wife hold title to real estate in some states.

The legal result is the signatures of both spouses are required to sell or encumber tenancy by the entireties property. When one spouse dies, the surviving spouse then owns the entire property, the same as with joint tenancy. The deceased's will has no effect on either joint tenancy or tenancy by the entireties property.

By comparison, if title is held in joint tenancy, one joint tenant can usually convey or encumber his/her share alone (thus breaking up the joint tenancy and creating a tenancy in common without the other joint tenant's approval). But this isn't possible when title is held as tenants by the entireties.

States allowing tenancy by the entireties title between husband and wife are Alaska, Arkansas, Delaware, Florida, Hawaii, Indiana, Kentucky, Maryland, Massachusetts, Michigan, Mississippi, Missouri, New Jersey, New York, North Carolina, Ohio, Oklahoma, Oregon, Pennsylvania, Tennessee, Vermont, Virginia, Wyoming and the District of Columbia.

In my opinion, a far better way for spouses to hold joint title to any real estate is in their revocable living trust to avoid probate costs and delays. A second major living-trust advantage is, if a co-owner becomes incapacitated such as with Alzheimer's disease or a severe stroke, the successor trustee (usually the other spouse) can continue managing the property, and even sell or refinance it.

However, if title is held in joint tenancy or tenancy by the entireties, a court-appointed conservator or guardian is required to represent the incapacitated co-owner. Please ask your attorney to explain further.

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