QMy first wife died in June 2000. After she died, I sold the house I bought with her for $300,000, which I wanted to leave to our children when I die. I have remarried and we have a home in another state, which I will leave to my wife. Recently, we bought a home in Maryland and both of us were on the property deed. I stated in my will that the house was to go to my children after I died, but subsequently discovered that the will has no effect since title was held as tenants by the entirety. My new wife has executed a quit claim deed relinquishing her interests in the property to me and the deed was recorded in land records in the county where the property is located.
Does this satisfy my desire to leave the property to my children or is there something else I must or should do?
AThe first thing you should do is have your financial and legal advisers review your will and any estate-planning arrangements you have made. You want to leave your current house to your children, so you have to make sure that your will reflects current law and is specific enough to accomplish your desire.
Many states allow a spouse to elect against the will. For example, Maryland law specifically states that "instead of property left to him by will the surviving spouse may elect to take a one-third share of the net estate if there is also a surviving issue, or a one-half share of the net estate if there is no surviving issue."
This means that even though your wife's quit claim leaves you with sole title to the house while you are alive, after your death she could elect to assert her spousal rights and possibly defeat your intention to protect the children from your first marriage. You and your wife should discuss this immediately. Your attorney can assist you in preparing a renunciation or similar agreement that your wife can sign -- but she must have independent legal counsel to advise her. If she relies only on your attorney's advice, she can subsequently argue that she was not properly represented and did not know what she was signing. She could also claim that your attorney had a conflict of interest.
You have advised me that you have several children. How old are they? The age of majority is 18 years in most states, and you do not want to leave your house to a minor. You should make sure that you name a trustee in your will who would hold title for your underage children until they get reach majority. You have the right to designate the age; some parents believe that their children will be fully mature and competent at age 18, while others would prefer to wait longer. The determination is yours and must be spelled out carefully in your will.
Are any of your children married? What happens if one of them should die before you do? Do you want that child's spouse to inherit his or her share of the family home, or should that share be redistributed to their children or your remaining surviving children?
You write that held title with your wife as tenants by the entirety. There are several ways in which title can be held with another person:
* Tenants in common: Each person owns a percentage interest in the property. It is usually held on a 50-50 basis, but that is not mandatory. What is important is that upon the death of one tenant in common, his or her 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 jurisdiction in which the person died. And the deceased person's estate must be probated. The property interest of the deceased person is administered by a "personal representative." In some cases, the personal representative may have to sell the property to pay estate expenses or creditor claims against the decedent. That could result in your children not receiving the home -- or the full value of the home -- when you die.
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 that the property is titled as "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 permit an unequal ownership. Upon the death of one owner, his or her interest goes to the surviving joint tenant, and probate is not necessary.
It should be noted that some state laws require specific language in the deed to make sure that the title is really held as joint tenants. Thus, if you want to avoid probate, it is important that the deed contains these magic words: "joint tenants with rights of survivorship".
It should also be noted that while both joint tenants are alive, creditors may be able to attach the interests of one of the joint tenants, forcing sale of the property. The other joint tenant who does not owe any money to the creditor will receive half of the sales proceeds, but obviously may not be able to keep the property.
Additionally, since there is nothing sacred about a joint tenancy, either joint tenant can 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 non-conveying owner.
* Tenancy by the entireties. Reserved exclusively for married couples. Husband and wife each own 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 is necessary.
To protect your children's inheritance, you took the proper first step by arranging for your wife to convey her interests in the family home to you as sole owner.
But that is not the only step you must take. Although you have a will, it may be out of date. There are many questions involved, and you must make sure that your will meets all of your needs and desires. The law favors wills and wants to make sure that the will-maker's intentions are fully carried out. But your will must be specific and carefully crafted.
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.