QOur house deed has the following language: "grant and convey unto John Doe and Mary Doe, his wife, to hold as tenants by the entirety . . ." Can you clarify this for us? If one of us should die, is the remaining spouse the sole heir of the property? In these days post-Terri Schiavo, I want to make sure that everything is in order.
AYes, should either of you die, the surviving spouse would be the sole owner of the property.
But you have really asked two legitimate, but unrelated, legal questions. Let's look first at the issues raised by the Terri Schiavo case. Schiavo died in March during a legal and political battle over whether she should remain connected to a feeding tube, 15 years after the heart attack that sent her into a "persistent vegetative state."
That battle probably could have been avoided if Schiavo had prepared what is known as a "living will." A living will, also called an advance directive, is a document that you create to give directions to your family and your doctors as to your wishes about medical care.
Whether you have a living will has nothing to do with how your property is titled. A living will controls the situation while the person is alive. Upon that person's death, a regular will -- and the title -- control the disposition of assets, including real estate.
If just one person owns a house, the property will be in his name as "sole owner." However, if two or more people own a piece of property, it can be held three ways:
* Tenants in common. Each owner owns a percentage interest in the property. If there are two owners, it is usually held on a 50-50 basis, but that is not mandatory. I have seen property held in many proportions. What is important is that upon the death of one tenant in common, his interest does not go to the survivor. Rather, that interest must be distributed in accordance with the will of the deceased; or, if there is no will, in accordance with the laws of inheritance of the state in which the person died. And the deceased person's estate must be probated. In many states that have adopted the Uniform Probate Code, once probate proceedings have been initiated, the property automatically vests (by what is known as "operation of law") into the personal representative.
In most jurisdictions, if a deed is conveyed to two people without a description of how title is to be held, the courts will consider them tenants in common.
* Joint tenants. The parties own an undivided interest in the property. In most states, the interest must be equal, although some states have enacted laws to permit an unequal ownership in a joint tenancy. Upon the death of one owner, his interest will automatically go to the surviving joint tenant, and probate will not be necessary.
Some state laws require specific language in the deed to make sure the title is really held as joint tenants. Thus, if you really want to avoid probate, it is important that the deed contains these words: "joint tenants with rights of survivorship."
It should be noted that while both joint tenants are alive, creditors may be able to attach the interests of one of the joint tenants, thereby forcing sale of the property. The other joint tenant who does not owe any money to the creditor would receive half of the sale proceeds but may not be able to keep the property.
Since there is nothing sacred about a joint tenancy, either joint tenant can unilaterally sever that tenancy by conveying his or her interest to a third party. If that should occur, that third person would end up owning the property as tenants in common with the nonconveying owner.
* Tenancy by the entireties. This form of ownership is reserved for married couples. Under a tenancy by the entirety arrangement, each spouse owns an undivided interest in the property. Unless both parties owe money to a creditor, the house cannot be attached. Upon the death of one party, the entire property will be owned by the survivor, and no probate will be necessary.
However, in 2002, the U.S. Supreme Court held that a federal tax lien against one spouse will attach to that spouse's rights in property, even though the property was held as tenants by the entireties. (United States v. Craft) The case involved property in Michigan. Michigan law, as in most states that allow tenancy by the entirety, did not allow attachments of judgment liens against land that was so held if the attachment was against only one of the two owners. Nevertheless, the court ruled that state law does not apply and that the federal tax lien will attach as against the property.
This case went against everything that real property lawyers have been taught since law school. However, its application is narrow in that it is applicable only to attachments under federal tax liens.
Thus, if you are married, and clearly want to avoid probate, you should confirm that title to your property is held in tenancy by the entireties. In your case, according to the language you quoted, it appears that it is. If you find that the property is not titled that way, you have the right to prepare and record a new deed that would reflect this new arrangement. There should be only a nominal recording fee to accomplish this, and either the recorder of deeds or your lawyer should be able to assist.
The way title is held can trump what you put in your will. As you say, you and your wife own the property as tenants by the entirety. Let us assume that you have children from a previous marriage and want them to get your half of the property on your death. You prepare a will and make it very clear that your interest in the property will go to your children.
Because of the way the title is held, your wife will automatically become the owner of the entire property on your death.
If you want your children to get your share of the house, title should be held as tenants in common. That way, your half of the property would be put in probate, and your intentions, as expressed in your will, would be honored. Some states, however, provide that the current wife would get a statutory share of your property, regardless of what the will says.
You should consult your legal and financial advisers if you have questions, or if your situation is unusual or complex.
In your case, however, if you or your wife die, the survivor will become the sole owner of the property without it having to go through probate court. If you have other assets, probate may still be necessary.
Benny L. Kass is a Washington lawyer. For a free copy of the booklet "A Guide to Settlement on Your New Home," send a self-addressed, stamped envelope to Benny L. Kass, Suite 1100, 1050 17th St. NW, Washington, D.C. 20036. Readers may also send questions to him at that address.