Question: When our mother died, my father subsequently remarried. He added his new wife as an owner of the family home, and they now own our house as "Tenants by the Entirety." My father has told my sister and I, on several occasions, that upon his death the home will go to both of us. To assure that this will happen, he showed us his Will, which appears consistent with his desires. Are we protected? Is the Will sufficient. Is there anything more we should be doing?

Answer: First, I want to make an important correction to your question. You state that your father and his new wife own "our" home.

Unfortunately, although it may once have been the family home, it is not your home. I assume that it was your father's and mother's house, and when your mother died, your father became the sole owner. He has now opted to add his new wife to the title, and that is his clear choice -- and his right.

For all practical purposes, your father's Will is meaningless as it relates to the house, and will not accomplish what you think are his intentions. In general, a person's Will only applies to assets in the decedent's individual name. In your case, the house is no longer in your father's individual name.

The legal concept of "Tenants by the Entirety" is reserved exclusively for a husband and wife. This means that your father and stepmother both own the entire property as one entity. It is not divisible, and neither spouse can sell or in any way dispose of an interest in the property without the consent of the other owner.

When one spouse dies, the other spouse automatically becomes the full owner of the entire property. This is what we lawyers call an act "by operation of law." No probate is required under these circumstances. In fact, it appears that your mother and father also owned the house as "tenants by the entirety," and thus when your mother died, the house automatically went into your father's name alone.

There is nothing your father can do in his Will to defeat this legal occurrence. Even if your stepmother has a Will leaving the property to you and your sister on her death, if she is so inclined she can always change the terms of her Will after your father's death.

Needless to say, this is not a pleasant subject. It is often difficult to talk to one's parents about death and inheritance. But the fact remains that your father's stated intentions will not be carried out as he has currently structured his legal affairs. I can foresee a major confrontation and possibly litigation, after your father has passed on.

You should try to discuss this situation with your father. Keep in mind, however, that he has the absolute right to dispose of the family home as he wants; it became his house on your mother's death, not yours.

If he really wants to leave the property to you and your sister on his death, he will have to change the title to the property. And even then, depending on which jurisdiction the property is located, his wife may still have statutory rights to a portion of his estate -- which may include the house.

Here are some possible suggestions for consideration by your father:

First, he can put you and your sister on title with him immediately, and structure the title so that upon his death, the two of you will become full owners of the property. Keep in mind that there are serious potential tax consequences to this form of transaction, and you must review the plan in advance with your financial and legal advisor. Also, among other things, there are creditor issues that must be addressed. If you or your sister owe creditors, they can force a sale of the family home.

Second, your father may want to protect his new wife, by giving her a life estate in the property. While she is alive, she would have the absolute right to live in, and use, the house. Upon her death, however, clear and simple title will go to you and your sister. There are potential issues involved with a life estate, such as who will pay the mortgage and the real estate tax, and what happens if the house has to be sold to pay for the health care of the second wife.

Third, on his death, he may want to give you and your sister half of the house (or some other percentage) and the remaining percentage to his new wife -- should she survive him. This would require his Estate to be probated, but the additional time and expense involved in the Probate proceeding will at least ensure that his wishes are being followed. However, you would then be an owner of the family home with his second wife.

Fourth, he may want to leave his new wife the entire house. As we have discussed, this is his call. And right now, the legal title of the property and your father's Will are not consistent.

Your lawyer can assist you in preparing options for consideration by your father. But only your father -- and his attorney -- can prepare the necessary paperwork.

If you are going to talk with your father about his estate, I also suggest that you discuss some other matters with him. For example, does he have a durable power of attorney, authorizing someone to handle his health and financial matters should he become incapacitated and unable to take care of his own affairs? Without such a power of attorney, you, your sister and his wife may have to spend a lot of unnecessary money getting a court to decide and appoint a legal guardian and conservator.

Does he have a Living Will? This is a written declaration by your father stating whether he wants life support to be withheld or withdrawn, if he is in a terminal condition. Hospitals will generally require such a document in order to be admitted, and it is always best to have such a document prepared in advance, rather than when there is an emergency situation.

Also, if his estate is currently worth over $1.5 million, there could be significant estate taxes that may need to be paid, depending on the size of his estate. This amount will increase next year to $2 million, will increase again in 2009 to $3.5 million, but thereafter (unless Congress acts to make this amount permanent) beginning in 2011, the number will revert back to $1 million. Not to scare you, but the tax this year can be as high at 47 percent.

This is an area that most of us shy away from. Yet, if your father has not adequately protected his estate and spelled out his intentions, it may very well be that a judge and a court -- and the Internal Revenue Service -- will determine who gets what and how much are the taxes.

There is an old expression that says "where there is a Will, there are relatives." Proper and early planning is critical. But, once again, the final decision rests solely with your father.