Real Estate: Frequently Asked Questions

Do I need an attorney to buy or sell a home in Massachusetts?

In Massachusetts, an attorney must conduct the closing — but the lender's closing attorney represents the lender, not you. Having your own attorney means someone is reviewing the offer and purchase and sale agreement, negotiating contingencies, resolving title issues, and protecting your interests at every stage. For sellers, an attorney prepares the deed and ensures you meet your contractual obligations. The cost is modest relative to what's at stake in most transactions.

What is the difference between the Offer to Purchase and the Purchase and Sale Agreement?

In Massachusetts, the Offer to Purchase is a binding contract once accepted — a point many buyers don't realize. The Purchase and Sale Agreement (the "P&S") follows a week or two later and is the more detailed contract governing the transaction. The window between offer and P&S is when your attorney negotiates protections such as inspection-related provisions, mortgage contingency language, and terms for the return of your deposit if the deal falls through.

What is a title search, and why does title insurance matter?

A title search examines the public records to confirm the seller actually owns the property and to uncover liens, mortgages, easements, or other encumbrances. Title insurance protects against defects the search didn't reveal — forged deeds, unknown heirs, recording errors. Lenders require their own policy, but an owner's policy, which protects you, is optional and inexpensive at closing. It is almost always worth purchasing; you cannot buy it later at the same cost once a problem surfaces.

How should I take title to my property?

How you hold title affects creditor protection, taxes, probate, and what happens at death. Married couples in Massachusetts often hold as tenants by the entirety, which offers survivorship plus protection against certain creditors of one spouse. Unmarried co-owners must choose between joint tenancy and tenancy in common — with very different consequences at death. Titling in a trust or an LLC may make sense for estate planning or investment property. This decision deserves more thought than it usually gets at closing.

What is a homestead, and do I need to file one?

The Massachusetts homestead law protects equity in your primary residence from many creditors. An automatic homestead provides limited protection, but recording a Declaration of Homestead at the Registry of Deeds increases that protection substantially for a small filing fee. If your home is held in trust, the declaration must be properly drafted and signed to be effective — a frequently missed detail. Every homeowner should confirm a valid declaration is on record.

Should I put my rental or investment property in an LLC?

​Often, yes. An LLC can shield your personal assets from liabilities arising from the property — a tenant injury, for example — and offers flexibility for ownership among family members. But the transfer must be done correctly: deed preparation and recording, attention to your lender's due-on-sale clause, insurance updates, and consideration of transfer taxes and income tax consequences. An LLC also only protects you if it's respected as a separate entity and properly maintained.

​What happens to my real estate when I die?

​It depends entirely on how it's titled. Jointly held property passes automatically to the survivor; property in a trust passes per the trust terms without probate; property in your name alone goes through probate. Real estate is often a family's most valuable asset and the source of the biggest estate planning mistakes — including out-of-state property, which can trigger a second probate proceeding in that state unless it's held in a trust or entity.

I inherited property with my siblings. What are our options?

​Co-owned inherited property is a common source of family conflict. Options include one sibling buying out the others, selling the property and dividing proceeds, or holding it together under a written agreement — ideally through an LLC with clear terms for expenses, use, and exit. Without an agreement, any co-owner can generally force a sale through a partition action, which is expensive and rarely leaves anyone happy. Addressing this early, with clear terms, preserves both the property and the relationships.

What should I know about buying or selling a two-family or condominium?

Condominiums add a layer of review: the condo documents, budget, reserves, pending assessments, and any litigation involving the association. For multi-family properties, lead paint compliance, existing tenancies, and security deposit obligations transfer to the buyer — Massachusetts security deposit law is strict and violations carry multiple damages. These issues should be investigated before the P&S is signed, not discovered after closing.

​Can real estate be part of my estate plan without giving up control?

​Yes. A revocable trust lets you keep full control during life while avoiding probate at death. For vacation homes or family compounds, an LLC or irrevocable trust can keep property in the family across generations, set rules for use and expenses, and potentially reduce estate taxes. Deeding property outright to children during life, by contrast, is usually a mistake — it can trigger gift tax filings, expose the property to the children's creditors, and forfeit the step-up in basis at death.