Question: My husband and I own a house in Prince George's County as "Tenants by the Entirety." Both of us have been married previously, and we each have children from those marriages. We have agreed that if one of us dies, the survivor will have the right to stay in the house as long as he or she lives, but when the survivor dies, half of the house will go to my children and the other half will go to his children. We have written a simple will spelling out our intentions, but we are not sure that this will is sufficient. Is there anything more we should be doing?
Answer: Yes. As you have outlined your situation, your will -- for all practical purposes -- is meaningless and will not accomplish what you intend.
Your house is owned by both of you as Tenants by the Entirety. This means that you both own the entire property as one entity. It is not divisible, and neither spouse can sell or in any way dispose of an interest in the property without the consent of the other owner.
When one spouse dies, the other spouse automatically becomes the full owner of the entire property. Lawyers call this an act "by operation of law".
There is nothing you can do in your will to defeat this legal occurrence. More significantly, you should recognize that if one of you should die, the survivor -- if he or she is so inclined -- can change the terms of the will, so as to defeat your joint and mutual purposes.
Needless to say, this is not a pleasant subject. But the fact remains that there is a possibility that your intentions -- your desires to protect your own children -- may not be carried out as you have structured your legal affairs. In many cases, honor and courtesy between all the children will end up resolving the difficult legal questions. Otherwise, you -- or they -- may get involved in a full blown court trial.
And there is nothing worse than brothers and sisters fighting each other in litigation.
You should try to avoid a clash between the relatives. If your intention is to give half of the property to your children and half to your husband's children, change the form of title from Tenant by the Entirety to a "Tenant in Common" relationship. Your lawyer can assist you in drafting the necessary papers, and the legal fee should be minimal. Since this would be a transfer between husband and wife "for love and affection," without any other consideration, there will be no transfer or recordation tax required by the County or the State.
You should note that if you hold property as Tenants in Common, on the death of one spouse it will be necessary to go to probate on that portion of the property previously owned by the deceased spouse. While this can add additional expense, it may be worth it to assure compliance with your desires.
Additionally, you should make absolutely sure that your wills are in proper form and shape. How old are your children? If they are minors, have you designated a guardian? Have you established a trust arrangement, so that the property goes in trust until the children reach the age that you will be comfortable with their taking over the responsibilities of property ownership. If you have more than one child, have you adequately protected both of them? And, perhaps, of most importance, have you adequately protected your spouse's interest in having the use of the entire property until his or her death?
Who will pay the real estate tax and the property insurance while the survivor remains in the house? Who will be making repairs, and paying the utility bills during this period of time? These are important questions which cannot be ignored. They must be discussed now -- and incorporated into a written document. In effect, you are providing what is known as a "life estate" to the survivor, and the terms and conditions of that estate must be recorded on land records in the jurisdiction where your property is located.
If your estate is worth a lot of money, then you may want to consider transferring the property now to one of you, with a revocable trust for the use and enjoyment of the property on the death of that spouse. The taxable consequences of having a large estate can be significant, and you should seriously consider discussing your entire estate planning with a competent estate counselor.
This is an area that most of us shy away from. Yet, if you have not adequately protected your estate and spelled out your intentions, it may very well be that a judge and a court -- and the Internal Revenue Service -- will make the decisions for you.