If you own real estate and want it to get into the hands of your loved one upon your death, there are a variety of ways to accomplish that goal. Many people will simply transfer by deed the property what is called joint tenants with rights of survivorship. Under New Hampshire law, any property transferred that way means the property half interest of the first owner to die is automatically transferred to the second owner so that the second owner is the sole owner. By way of example, if you are a widow or widower and have a son and you want to make sure he gets a particular property upon your death without need of probate, whether it is your residence, your vacation home, or an investment property, if you deed the property into yourself and your son as joint tenants with rights of survivorship and you are the first to die then it automatically goes to your son without the need of going through probate proceedings. However, depending upon your circumstances, it may be best to instead to transfer the property to your son with you retaining what is called a life-tenancy; meaning that during your life you are able to receive all the benefits and responsibilities of ownership. If your son has an equal interest in the property, yet is going through a divorce, his soon-to-be ex-wife may get an interest in your property. Further, if your son has creditor problems, there might be a judicial lien, called an attachment, placed on your property due to your son’s debts.
Further, joint tenants with rights of survivorship situation can break the tenancy by deeding their half interest out to himself for the purposes of creating a tenant in common where now both owner’s interests in the property go to their heirs upon their death. Therefore, if one of them dies, their half interest would go pursuant to their Will or the intestacy statutes rather than being immediately transferred to the other individual. For example, if an unmarried couple decides to buy a house together and transfers it into joint tenants with rights of survivorship with the idea that they will both be able to live in the property during their respective lifetimes and the relationship sours, if one decides to move out of the house and breaks the joint tenancy with rights of survivorship by recording a deed transferring his/her interest to himself as a tenant in common it will create a tenancy in common with the other owner. At that point, even if the person who moved out does not do anything with the property and he dies, his one-half interest is owned by his estate and does not automatically go to the person living in the property. There may be a litigation challenge to that tenancy in common with an argument that the unmarried couple had agreed to the joint tenant with rights of survivorship arrangement and the decedent breached that agreement yet a written agreement to that effect may be prudent to avoid a future law suit. Discussing the options with an attorney to develop a strategy to best suit the goals intended would be prudent and far less costly than a future law suit when the circumstances changed whether from an estranged relationship, death, or otherwise.
J. Daniel Marr is a Director and Shareholder at Hamblett & Kerrigan, P.A. His legal practice includes counseling businesses and individuals on a variety of legal issues and advocating on their behalf. Attorney Marr is licensed and practices in both New Hampshire and Massachusetts. Attorney Marr can be reached at [email protected].