Most families spend time thinking about who should inherit their assets but far less time thinking about how those assets are owned. The form of ownership on a bank account, a deed, or a brokerage account often controls what happens at death, regardless of what a will or trust says. Understanding the basics of asset titling in Massachusetts can prevent costly surprises and keep an estate plan working as intended.
Why Title Matters More Than Most People Realize
A will only governs assets that pass through probate. Assets held in joint ownership, trust ownership, or with beneficiary designations follow their own transfer rules and bypass the will entirely. This means a family could have a carefully drafted estate plan that gets overridden by the way an account was titled at the bank years ago.
Massachusetts courts follow legal title and beneficiary designations strictly. Intent alone is not enough. If a deed says “joint tenants with rights of survivorship,” the surviving owner generally takes the property at death, and the will does not control. One important exception: under MGL c. 190B, section 2-804, a divorce automatically revokes survivorship rights and certain other nonprobate transfers to a former spouse.
Sole Ownership
Assets titled in one person’s name alone, with no beneficiary designation, are probate assets. They pass under the terms of the will (or under Massachusetts intestacy law if there is no will).
Common examples include a home deeded to one individual, a bank account in one name, or a vehicle title listing a single owner. These assets require court administration before they can be distributed to heirs.
For families in Massachusetts, the probate process is governed by the Uniform Probate Code. Even relatively uncomplicated estates typically take several months to settle.
Joint Ownership With Rights of Survivorship
When two or more people own an asset as joint tenants with rights of survivorship, the surviving owner automatically takes full ownership at death. No probate is needed and there is no court involvement. The asset transfers by operation of law.
For unmarried co-owners, this is a common way to hold real estate or bank accounts in Massachusetts. It provides a fast, private transfer at the first death. Married couples more commonly hold real estate as tenants by the entirety (discussed below), which provides additional protections.
The risk comes at the second death. If the surviving owner holds everything in their sole name after inheriting through joint ownership, every one of those assets becomes a probate asset. Families who rely entirely on joint ownership often avoid probate at the first death but walk directly into it at the second.
Other Forms of Co-Ownership
Massachusetts recognizes two additional forms of co-ownership that families should understand.
Tenancy by the entirety is available only to married couples. In Massachusetts, it applies to real estate and can also extend to personal property such as bank accounts and motor vehicles. It functions like joint tenancy with survivorship rights, but it adds creditor protection. A creditor of only one spouse generally cannot reach a property held as tenants by the entirety, particularly in the principal-residence context, though the protection is not absolute in every circumstance. It terminates automatically upon divorce. Families should confirm with an attorney that their deed reflects the intended form of ownership, especially after refinancing or transferring property.
Tenancy in common means each owner holds a defined share of the property (often 50/50, but not necessarily). There is no survivorship right. When one owner dies, that person’s share passes through probate under their will or by intestacy law. This form of ownership is common among unmarried co-owners, business partners, or siblings who inherit property together. It gives each owner independent control of their share but creates probate exposure for every co-owner’s interest.
Trust Ownership
Assets titled in the name of a revocable trust (a trust that can be changed or revoked during the grantor’s lifetime) avoid probate entirely. The trustee manages and distributes trust assets according to the trust terms, without court involvement.
Retitling assets into a revocable trust has no income tax or gift tax consequences during the grantor’s lifetime. The grantor is treated as the owner of the trust assets for tax purposes. Transfers of real estate into a revocable trust also generally do not upset a mortgage.
The catch: the trust only controls assets that are actually titled in the trust’s name. An unfunded trust (one that was signed but never received assets) provides limited benefit. A pour-over will can catch unfunded assets and direct them into the trust, but those assets still pass through probate first.
Beneficiary Designations: The Title That Overrides Everything
Retirement accounts (IRAs, 401(k)s), life insurance policies, annuities, and payable-on-death (POD) or transfer-on-death (TOD) accounts all pass by beneficiary designation. These assets transfer directly to the named beneficiary at death, bypassing both probate and the will.
However, a beneficiary designation that names an ex-spouse, a deceased relative, or no one at all can derail an otherwise solid estate plan. Families should review every beneficiary designation at least every three to five years and after any major life event (marriage, divorce, birth, death).
Retirement accounts should never be retitled into a trust during the owner’s lifetime, but may name a trust as a beneficiary. Changing ownership of an IRA to a trust is treated as a taxable distribution of the entire account balance under IRC section 408, triggering immediate income tax consequences. The correct approach is to name the trust (or individuals) as the beneficiary on the account, not to change the account’s ownership.
Planning Ahead
The way assets are titled is one of the most overlooked parts of estate planning, and one of the most consequential. A well-drafted will or trust can only do its job if the underlying asset titles are coordinated with the plan.
Families in Massachusetts should consider reviewing their deeds, account titles, and beneficiary designations alongside their estate planning documents. RackiLaw works with clients to create a funding checklist after every estate plan is signed, ensuring that the plan on paper matches the reality on every account statement and deed. If it has been a few years since you last reviewed how your assets are titled, scheduling a consultation is a practical next step.
References
- MGL c. 190B, sections 2-101 through 2-103 (Massachusetts intestacy statute)
- MGL c. 190B, section 2-804 (revocation of nonprobate transfers on divorce)
- MGL c. 184, section 7 (tenancy by the entirety in real estate)
- MGL c. 209, section 1 (spousal property rights)
- IRC sections 671 through 679 (grantor trust income tax treatment)
- IRC section 408 (individual retirement account taxation)
- mass.gov/orgs/probate-and-family-court (Massachusetts Probate and Family Court)