QMy friend and I signed a contract to buy a condominium, with settlement scheduled for the end of July. We are both putting up equal amounts of money for the purchase and have agreed to share all expenses equally. Is there some legal document that we need to protect each other's interest if a tragedy hits one of us, or if we ever decide to split up? We want to ensure that if one of us should die, the survivor will get the property with absolutely no claims considered by family members.
A There are four ways that title can be held, but only two are applicable to your situation.
* Sole owner. Only one person is on the title to the property.
* Tenants in common. Each of you would have a divisible interest in the property. Let us assume in your case that each of you will have a 50 percent interest in the property. If one of you dies, his or her interest in the property will go to probate, and if you have a will, your share of the property will be distributed according to that will.
It used to be that probate was cumbersome and slow, especially in the District. However, legislation enacted by the D.C. Council has greatly simplified the process.
Many states have enacted the Uniform Probate Code, which not only has allowed the probate process to move quickly, but also has significantly reduced the cost of probate proceedings.
* Joint tenants. On the death of one of the joint property owners, full title will go to the survivor. The survivor would own the entire property, without having to go to probate court.
It should be noted that some state courts have held that if title is held as joint tenants, but without the words "with rights of survivorship" added to the deed, it will treated as a tenant in common arrangement. Under our common law, joint tenancies were favored by the courts. That has changed over the past century, legal historians have concluded, and now there is a presumption that property is being held as tenants in common unless the deed makes otherwise clear.
If that this is the approach you want to take, the deed should read "joint tenants with rights of survivorship."
* Tenants by the entireties. This type of title is reserved for married couples. It has the same effect as a joint tenant with right of survivorship but creates a more protected relationship for husband and wife.
Depending on exactly what the two of you want to accomplish, choose between joint tenancy and tenancy in common. No matter how you title your property, however, if you want to make sure all your financial wishes are followed after your death, you must have a will.
Our legal system makes it clear that judges will honor the intentions of the maker of the will. If you do not have a will on your death, every state has laws that spell out how your assets are to be distributed. But your intentions may be different from the laws of your state.
I suggest you discuss these matters with your friend, and with your respective lawyers, before you go to settlement. I also suggest that however you hold title, you enter into a written agreement, similar to a partnership agreement, that spells out your respective rights and obligations. The agreement should cover at least the following issues:
* Who pays the mortgage, insurance and real estate taxes?
* What happens if one of you is unable to make payments?
* If one of you should die, what will the other person do with the property?
* If one of you wants out of the relationship, what will happen with the property? Will the remaining owner be able to rent space to a third party? Will the remaining owner be given an opportunity to purchase your interest in the property, and if so, at what price?
Those are important questions, and you must discuss them before you go to closing.
There are at least three other documents that you should have:
* Living will, also known as a health care directive. This is a document that spells out your intentions should your doctors determine that you are brain dead or in a permanent coma. Life-support systems can keep your body alive for many years, even if your brain is not working. Under these circumstances, do you want to be attached to these support systems?
* Durable power of attorney. You and your friend keep separate checking accounts, and each of you will pay half of the mortgage, taxes and insurance. Suddenly, you have a stroke and are unable to speak or write. How will your share of the household expenses be paid?
Here is where the durable power of attorney comes in. You sign a written document specifically authorizing someone (it could be your friend, or a relative) to take over your financial affairs, including writing checks or even selling the house.
Without such a legal document, it may be necessary to go to court to have a conservator appointed. That person would have the same authority to act that you have in making decisions and signing checks. But going to court can be time-consuming and expensive. The power of attorney can be accomplished quickly and inexpensively.
* Durable power of attorney for health. This is a document that is similar to the regular power of attorney. The main difference is that this document gives authority to a person or people designated by you to make health-related decisions on your behalf. Should you be placed in a nursing home or in a retirement home? Does the doctor have the right to amputate one of your limbs if that is considered necessary for your continued well-being? There are many medical decisions that become necessary, and if you are incapable of expressing your intentions, your doctor needs guidance from someone.
You are taking an important step by buying your home. Make sure that you protect your asset as best you can now, while you are still able to make those important decisions.
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.