Housing Counsel: Protecting Your Child's Inheritance Takes Careful Planning

Written by Posted On Sunday, 20 November 2005 16:00

Question: My first wife passed away in June of 2000. After she died, I sold the home I bought with her for $300,000, which I wanted to leave to our children when I died. I have now remarried. We have a home in another State, which I will leave to my current 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 when 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?

Answer: The first thing you should do is have your financial and legal advisors 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 desires.

Many states, including Maryland, 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 your current wife could elect to assert her spousal rights and possibly defeat your intentions to protect your children. You and your current wife should discuss this immediately. Your attorney can assist you in preparing a renunciation or similar agreement which your wife can sign -- but she must have independent legal counsel to advise her regarding this matter. If she relies only on your attorney's advice, she can subsequently argue that she was not properly represented and did not really know what she was signing. Additionally, she could claim that your attorney had a conflict of interest.

You have advised me that you have several children. How old are they? If they are not of the age of majority (usually 18 years of age) you do not want to leave your house to a minor. You should make sure that you specifically name a trustee in your Will who will hold title to your under-age children until they get older. 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 a longer period of time. 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 their spouse to inherit their share of the family home or should their share be redistributed to their children or your remaining surviving children?

Originally, you 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: Here, each owner owns a percentage interest in the property. If 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 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 the Personal Representative (PR). In some cases, the PR may have to sell the property to pay estate expenses or creditor claims against the decedent. This could result in your children not receiving the home -- or the full value of the home -- when you die.

    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: Here, 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.

    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 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 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.

    Thus, in order 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 into your name 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-makers intentions are fully carried out. But your Will must be specific and carefully crafted.

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Benny L Kass

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 LEGAL GROUP, 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.


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