I had the misfortune of witnessing a good example of ineffective counsel regarding tenancy by the entirety yesterday. I was at a real estate closing where the buyers were moving here from the East Coast. They still owned a home on the East Coast. Unfortunately, the attorney they hired is not known for his brilliant legal acumen. He simply told them that tenancy by the entirety was the "best" way to take title. Here is just a small sampling of what he failed to ask to determine whether this was best for them:
- Were they married? Sure he assumed they were, but if they were not, they cannot be tenants by the entirety. Of course, this is not as bad as another genius in the area who routinely vests title in unmarried people as "each an unmarried person, as tenants by the entirety."
- Were they planning to occupy this house as their residence? Again, he assumed, but if they did not, they cannot be tenants by the entirety. Perhaps they were planning to remain on the East Coast for a few weeks or months.
- Was their home on the East Coast owned by them as tenants by the entirety? Let’s say it was, and there was a judgment against the husband in the state from which they moved. It is possible that his haste to foist this tenancy upon them made that judgment immediately enforceable.
- Did either of them have any reason to believe they may become disabled?
- Did either of them have any reason to believe they were more likely than the average person to be sued?
So, if anyone tells you tenancy by the entirety is the "best" way for you to take title without asking you a few questions, run away quickly.
Oh, and he misspelled "entirety" on the deed.