One of the most frequent questions I am asked deals with the ownership of land when 2 or more people are named as owners on a deed. The question becomes “What happens to the property when one of us dies?” The answer is the proverbial, “It depends.” The law in the state of Maine (and generally throughout the country) has a different result depending on the language of the deed.
There are two common ways to own real estate. The most common form of co-ownership of real estate in Maine is what is known as a “joint tenants.” The other common form of ownership is “tenants in common.” As you can imagine, the language of the deed is critical.
If a deed says that the land is conveyed to “John and Mary,” without any further description as to how it is held, then Maine law says that “tenants in common” are created. As a tenant in common, the law provides that if one of the owners dies, the deceased owner’s interest passes to his estate, and thus according to his will (or the laws of intestacy if there is no will). Probate would be required to transfer ownership of the deceased owner’s interest in the property to anyone, including the other owner.
If a deed says that the land is conveyed to “John and Mary as joint tenants,” a joint tenancy with the right of survivorship is created. The most important difference between joint tenants and tenants in common is this right of survivorship. In a joint tenancy, unlike tenants in common, when one of the owners dies, the other owner(s) automatically obtain the ownership interest of the deceased owner. No probate is necessary.
Most married couples want the survivor to enjoy complete ownership rights after the death of one of them, without the necessity of going through probate. Thus most married couples want any real estate held by them to be in a “joint tenancy.” Ownership as tenants in common may be appropriate in a number of situations, including ownership of camps between sibilings or friends, or between a husband and wife where there are tax considerations or in the situation of a second marriage.
In summary, the language of the deed controls how the property will be owned after the death of one of the owners. When purchasing property, check the deed language before accepting the deed to be certain the language does what you want it to do.
This article is meant to be informative only, and is not intended to be legal advice for any person. It cannot be relied upon for any specific situation. You should consult with an attorney and describe the facts of your particular situation and obtain his or her advice before taking action in a specific case.
Ronald G. Aseltine, Esq., practices law at 42 Main Street, Livermore Falls, ME. He also has an office in Wilton.