We ask for marital status on our information sheets for both sellers and buyers. Here are the reasons why (in three parts):
For Buyers: we need to know how they plan to own the property. There are basically four choices (other than in a trust, sole ownership, etc.)
Tenants in Common – each person owns a percentage of the whole property, for example, if there are two owners, each would own 50% during their lifetimes. If one owner dies, that owner’s percentage would go to his/her heirs, designated through a will or through the North Carolina intestacy statute. The other original owner would retain his/her 50% but would share the property with the heirs.
Joint Tenants – very similar to tenants in common, except that during the owners’ lifetimes, they would each own a 100%, undivided interest in the property. Upon death, ownership reverts to tenants in common, with the heirs of the dead owners sharing that person’s percentage with the other original owner having his/her percentage unchanged.
Joint Tenants with Right of Survivorship (JTWROS) -for unmarried people, this is the one we see most often. Here, each owner has a 100%, undivided interest in the property during his/her lifetime. However, if one owner dies, the other owner, at that moment, becomes the sole owner of the property. It does not pass through a will or through intestacy statutes. It just happens.
Tenants by the Entireties (TBE) – for a married couple, this is the most common. It is similar to JTWROS in how the property passes upon death. So, if one spouse dies, the other spouse becomes the sole owner at that moment. For married people, it gives another significant protection. If a couple is married when they are deeded the property, remain married through their ownership, and sell the property while still married, there is a protection against judgments and liens. Judgments and liens can only attach to (and become a problem upon sale) if they are against both spouses. A judgment against one spouse does not attach to the property. As I tell people in closings, there is only one entity that can overcome this protection – the IRS (and certain federal liens).
A key thing to know about this is that does not happen automatically. If you get the property as unmarried people, and you do not deed the property to yourselves as a married couple after you are married, you do NOT get this extra protection! For this reason, in our office, if a couple is engaged (or “engaged to be engaged”), we encourage them to come back after they are married so that we can give them a new deed as a wedding present!
This is a mighty protection, but sometimes, it is not the right choice for a married couple, especially if they come into the marriage with children from another marriage, or with significant assets. Then, they may want to consider a different type of ownership.
Many people have created trusts and want their property to go into the trust. If they are making a cash purchase, there is no problem allowing that. For loan purchases, they will need to get permission from the lender (and many lenders will not allow it). In those cases, they will need to move the property into their trust after they own it individually.
In Part 2, I will discuss reasons we need to know this for the sellers.
Revolution Law Group is located in Greensboro, NC, and serves individuals and small businesses throughout the Triad and surrounding areas. To contact us please visit Revolution.law or call 336-333-7907.
The information included here is for informational purposes only, is not exhaustive of all considerations when creating documents, is not intended to be legal advice, and should not be relied upon for that purpose. We strongly recommend you consult with an attorney and do not attempt to create your own documents.