Q: My husband and I own a house in Montgomery County, as "tenants by the entirety." Both of us have been married previously, and we each have our own children. 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 that 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. Is there anything more we should be doing?
A: Definitely. 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.
By virtue of the law, when one spouse dies, the other automatically is the full owner of the entire property. We lawyers call this an act that is created "by operation of the law."
There is nothing you can do in your will to defeat this legal happening. More significantly, you should recognize that if both of you should die at the same time, the party who survives --albeit for an instant -- will own the entire property, and his or her heirs will inherit all of the house. The heirs on both sides, unfortunately, might have to be totally dependent on a coroner's determination of which person died last.
Needless to say, this is not a pleasant subject. But the fact remains that neither you nor your husband's intentions will be carried out as you have structured your legal affairs. In many cases, discretion, honor and courtesy between all the children end up resolving the difficult legal questions.
Let's 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 tenants by the entirety to a "tenants in common" relationship. Your lawyer can assist you in drafting the necessary papers, and the cost should not be too high. Since this is a transfer "for love and affection," without any other consideration, there should be no transfer tax required by the country or the state.
Additonially, 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? 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 death?
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 will make the decisions for you.