Asset Protection Planning

For most people, the house they live in is the biggest asset in their estate.  How ownership of the house is held (through title) can make a difference on how the house is protected for later sale or for passing to beneficiaries.

Only husband and wife can have a Tenancy By Entirety (TBE), a form of joint ownership that protects each spouse from the creditors of the other spouse (but not of both spouses).  On the death of the first spouse, the house automatically goes to the surviving spouse.

A Joint Tenancy with a right of survivorship (JTWROS) can be held by two or more individuals, regardless of their relationship.  When one joint owner dies, the house automatically goes to the surviving joint owner/s.  Be aware however, the house is fully available to the creditors of each joint owner.  A Tenancy In Common (TIC) doesn’t contain a right of survivorship.  Each person’s ownership portion of the house passes by his or her Will or can be sold independently during life.  Check your house deed to see which type of ownership you have.

If someone dies with a house in his or her name alone, the house will go through probate and pass by Will (or by the dictates of the state if there is no Will).  One useful method to avoid probate and possible state claims against the house (for repayment of nursing home costs) is a Life Estate which designates a current owner (you) and a future owner (your beneficiaries).


Roger Levine is an Estate Planning attorney & Elder Law Attorney with offices in Canton, MA & Brockton MA.