Massachusetts life estate deed

What a life estate deed does in Massachusetts

A traditional life estate deed splits ownership across time. You, the life tenant, keep the right to live in and use the property for the rest of your life. The remaindermen you name own everything after that, and their interest vests the moment the deed is delivered; recording protects it against later buyers and creditors. Because their interest is real and present, you can't sell, refinance, or undo the deed without their signatures. That permanence is the whole difference between this and a lady bird deed.

Because you keep a life estate, the property stays part of your estate for the Massachusetts estate tax, and the tax is a lien on it for ten years after your death (Mass. Gen. Laws ch. 65C, § 14). To sell or refinance after your death, the people you named record a certified death certificate annotated with the property address and the book and page of this deed, plus a release of the Massachusetts estate tax lien (DOR Form M-792) or the executor's affidavit allowed by ch. 65C, § 14.

The Massachusetts law behind this deed

Massachusetts has no section written specifically for life estate deeds. The instrument runs on the general conveyancing and recording statutes below, which is why the requirements here look like those for any other deed in the state.

When Massachusetts homeowners use a life estate deed

• Pass a home to children while reserving the right to live there for life
• Start the Medicaid look-back clock on a transfer (state rules vary)
• Avoid probate on the property with a simple, long-established instrument
• Provide for a surviving spouse or partner with the remainder going to your own children

What Massachusetts requires on the deed

These are the execution and formatting rules registries of deeds enforce. Getting any of them wrong is the usual reason a deed comes back in the mail.

How to complete and record it in Massachusetts

1. 1Find your current deedYou need the legal description from it, word for word. If you can't find your copy, the Registry of Deeds can provide one, usually for a few dollars.
2. 2Identify everyone by full legal nameNames must match the current deed and government ID exactly, middle names included. A mismatch creates a gap in the chain of title that shows up years later at closing.
3. 3Complete the deedDeedly builds it with the wording, notary certificate, and 3-inch first-page margin used for Massachusetts deeds.
4. 4Sign in front of a notaryBring photo ID. Wait to sign until you are in front of the notary: you have to appear before the notary anyway, and signing there leaves no question about who signed.
5. 5Record it with the Registry of DeedsFile in the county where the property is located and pay the recording fee. E-recording in Massachusetts is limited to eligible submitters, such as attorneys, title insurance companies, banks and credit unions, government agencies and licensed surveyors, and a deed exempt from the deeds excise can be e-recorded only with the registry's approval (Massachusetts Deed Indexing Standards 20-2, 20-5). Homeowners record in person or by mail. Keep the stamped receipt. It fixes your priority date.
6. 6Tell the people you named where it isAt your death they record a certified death certificate, and in some states an affidavit, to show that your life estate has ended. Ask your insurer whether they should be added to the policy now.

What it costs in Massachusetts

Massachusetts charges a deeds excise tax of $4.56 per $1,000 of consideration ($2.28 per $500), or $6.48 per $1,000 in Barnstable County, where a county excise is added. Customarily paid by the grantor. No Massachusetts city or town levies its own transfer tax. The only additions are the Barnstable County excise and the Nantucket and Martha's Vineyard Land Bank fees. Barnstable County's $6.48 per $1,000 is a $3.42 state excise plus a $3.06 county excise. Elsewhere the $2.28 per $500 is the $2.00 per $500 of Mass. Gen. Laws ch. 64D, § 1 plus a 14% surcharge (St. 1969, c. 546, § 23), as the Department of Revenue's Directive 95-4 and the registers of deeds' Deed Indexing Standards explain. In Dukes County (Martha's Vineyard) and Nantucket, the buyer pays a 2% Land Bank transfer fee on the purchase price unless an exemption applies, and every deed, including a gift or other exempt transfer, must first be processed through the Land Bank, with its Form 1 (Nantucket) or Form LB1 (Martha's Vineyard) and an exemption form (Nantucket Form 1 Part D, Martha's Vineyard Form LB2) when one is claimed, before the registry records it. The state excise applies only when the consideration is more than $100 (Mass. Gen. Laws ch. 64D, § 1), so a bona fide gift owes none (DOR Directive 89-16), but a spouse or relative who pays is taxed on the price.

Exemptions that commonly apply to a transfer like this: deeds for a consideration of $100 or less, including bona fide gifts, deeds between spouses under a divorce judgment, when the deed says so and gives the court and docket number, and deeds to or from the commonwealth, one of its cities or towns, or the federal government, or any of their agencies. You have to claim the exemption. The recorder won't apply it for you.

Where to record it in Massachusetts

Massachusetts deeds are recorded with the Registry of Deeds in the county where the property sits, not where you live. There are 14 counties in Massachusetts.

E-recording in Massachusetts is limited to eligible submitters, such as attorneys, title insurance companies, banks and credit unions, government agencies and licensed surveyors, and a deed exempt from the deeds excise can be e-recorded only with the registry's approval (Massachusetts Deed Indexing Standards 20-2, 20-5). Homeowners record in person or by mail.

Recording offices we cover in Massachusetts: Middlesex South, Worcester, Suffolk, Norfolk, Plymouth, Essex South, Hampden, Middlesex North, Essex North, Bristol North, Barnstable, Bristol South. See all Massachusetts recording offices.

What a life estate deed does NOT do

Being honest about the limits is more useful than a sales pitch. Every one of these catches somebody out.

• It is not revocable. Once recorded, you can't sell or mortgage the property without every remainderman signing.
• A remainderman's divorce, bankruptcy, or judgment creditor can attach their interest in your home while you're still living in it.
• Because you keep the right to live there for life, the full value is still counted in your estate for federal tax purposes (26 U.S.C. § 2036). That generally gives the remaindermen a stepped-up basis at your death, but it also means the deed does not shrink a taxable estate.
• It is usually treated as a divestment for Medicaid purposes. Get advice before using it for that purpose.

Quirks of Massachusetts law that catch people out

• In Massachusetts, the QUITCLAIM deed, not the warranty deed, is the standard instrument for an ordinary sale. A Massachusetts quitclaim carries limited covenants and is roughly equivalent to a special warranty deed elsewhere. This surprises people moving from other states.
• Massachusetts registries charge a flat $155 to record a deed, whatever its length, including the $50 Community Preservation Act surcharge (Mass. Gen. Laws ch. 44B, § 8).
• Massachusetts has 14 counties and 21 registry districts. Five counties are split into registry districts: Berkshire (three), Bristol (three), Essex (two), Middlesex (two) and Worcester (two). Record in the district that covers the town (Mass. Gen. Laws ch. 36, §§ 1, 12).
• A registry will not record a deed of recorded land unless it refers to the prior recorded deed or a recorded plan, or states that it creates no new boundaries (Mass. Gen. Laws ch. 183, § 6A). Deedly's deed prints the book and page of your prior deed.
• The legal description must name the city or town where the land lies (Massachusetts Deed Indexing Standard 14-5). Check that the description you copy from your prior deed names it.
• Massachusetts has two land systems: recorded land and registered (Land Court) land. If your deed cites a Certificate of Title number and a lot on a Land Court plan, your property is registered land. Its deed must convey a lot shown on a Land Court plan, cite the Certificate of Title, and be filed with the registry's registered land section, and it transfers title only when the registry registers it (Mass. Gen. Laws ch. 185, § 57). Deedly's deed is written for recorded land. If yours is registered land, ask the registry's registered land section or an attorney before you sign.
• Massachusetts homestead protects a home from creditors; it is not a property tax break. A new owner who lives in the home can record a separate Declaration of Homestead (Mass. Gen. Laws ch. 188, § 5) for up to $1,000,000 of protection. Otherwise only the automatic $125,000 applies (§§ 1, 4).
• Any Massachusetts notary can notarize your signature on this deed, but a notary who is not a Massachusetts attorney may not conduct a real estate closing or act as a closing agent (Mass. Gen. Laws ch. 222, § 17).
• Massachusetts does not recognize transfer-on-death deeds.