Question: Our 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 please 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 my "house is in order."

Answer: Yes, should either of you die, the surviving spouse will be the sole owner of the property.

You have asked two legitimate -- but unrelated -- legal questions. Let's look at the Terri Schiavo issue first. Our nation has gone through an unprecedented legal battle -- and a battle which could have been avoided if Ms. Schiavo had prepared what is known as a "living will."

I will not take sides -- or even comment -- on the Schiavo case. However, what is important is that everyone should decide on their own whether they want to pull the proverbial plug after their doctors make a determination that their brain is dead and that they can only survive on artificial life support systems.

A living will -- also called an "advance directive" -- is a document which you create while you are competent which gives directions to your family and to your doctors as to your wishes should you be determined to be in a vegetative stage.

Please understand that the Terri Shiavo -- living will -- controversy has absolutely 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, the will -- and the title -- control the disposition of your assets, including your house.

Now, let's take a minute and explain how property can be held. If you are the only owner, the property will be in your name as "sole owner." However, if two or more people own a piece of property, there are three ways that the property can be held:

• Tenants in common: Each owner owns a percentage interest in the property. Typically, if there are only two owners, it is usually held on a 50-50 basis, but that is not mandatory. I have seen property held in any percentage. What is important, however, is that on 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 state in which the person died. And the deceased person's estate must be probated.

In many states, which 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.

It should be noted that in most jurisdictions throughout this country, if a deed is conveyed to two persons 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 have enacted laws to permit an unequal ownership in a joint tenancy. On the death of one owner, his/her 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 that the title is really held as joint tenants. Thus, if you really 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, thereby forcing the 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 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 non-conveying owner.

• Tenancy by the entireties: This form of ownership is reserved exclusively for husbands and wives. Under a tenancy by the entirety (T by E) arrangement, both husband and wife own an undivided interest in the property. Unless both parties owe money to a creditor, the house cannot be attached.

On the death of one party, the entire property will be owned by the survivor, and no probate will be necessary.

However, in April of 2002, the United State 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 vs. Craft). The case involved property in the State of Michigan. Michigan law -- like most states which allow tenancy by the entirety -- did not allow attachments of judgment liens against land which was held as Tenancy by the entirety (T by E) if the attachment was only against one of the two owners. Nevertheless, the high 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 only applicable 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 as "T by E." If you find that the property is not titled as such, you have the right to prepare and record a new deed which would reflect this new arrangement. There should be only a nominal recording fee to accomplish this, and either the Recorder of Deeds or your attorney should be able to assist.

It should also be noted that the way title is held can trump what you put in your will. In your example, you and your wife own the property as tenants by the entirety. Let us assume that you have children from a prior marriage and want them to get your half of the property on your death. You prepare a Last Will and Testament and make it very clear that your interest in the property will go to your children.

Sorry. Since title is held as T by E, your current 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 have been held as Tenants in Common. This way, your half of the property would be put in probate, and your intentions -- as expressed in your Will -- will be honored. Some states, however, provide that the current wife will get a statutory share of your property, regardless of what the Will says.

Obviously, you should consult your legal and financial advisors if you have questions -- or if your situation is unusual or complex.

However, in your case, if you or your wife die, the survivor will become the sole owner of the property, without having it go through the Probate Court. If you have other assets, probate may still be necessary, but that's a situation for another column.

Published: June 20, 2005

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Author of the weekly Housing Counsel column with The Washington Post for nearly 30 years, Benny Kass is the senior partner with the Washington, DC law firm of Kass, Mitek & Kass, PLLC and a specialist in such real estate legal areas as commercial and residential financing, closings, foreclosures and workouts. Mr. Kass is a Charter Member of the College of Community Association Attorneys, and has written extensively about community association issues. In addition, he is a life member of the National Conference of Commissioners on Uniform State Laws. In this capacity, he has been involved in the development of almost all of the Commission’s real estate laws, including the Uniform Common Interest Ownership Act which has been adopted in many states.