When planning your estate, you need to consider who gets your property as well as when you want them to receive it. You may also want to avoid the probate process, which often delays the transfer of property. One option is creating a life estate, which allows your real estate to be immediately transferred to another person after your death without going through probate.
A life estate essentially creates two owners with different rights to one property. The life tenant is a person who owns and controls the property for the remainder of his life. The "remainderman" is a second person who gets the rights to the property after the life tenant dies. Once the remainderman receives the property, he owns it outright without any restrictions. While the life tenant possesses the property, he cannot sell it without the consent of the remainderman. The life tenant is also responsible for maintaining the property for the duration of his life.
Identifying the Life Tenant
There are generally two scenarios when a life estate is used. The first is if a property owner wants to retain the use of property during his life but knows who he wants to give the property to when he dies. In this scenario, the owner creates a life estate with himself as life tenant and the person he wants to give the property to as the remainderman. The second option is through the use of a will; the will maker grants a life estate to one person and makes another person a remainderman. This can be helpful if the property owner has remarried. Specifically, the will maker grants his current spouse a life estate in property, then makes his biological children from his first marriage the remaindermen.
Creating a Life Estate
Creating a life estate is subject to the laws of the state where the property is located. Generally, it requires executing a deed that includes the property’s location, size and tax parcel number. This information can generally be obtained from the city or county where the property is located. To create the actual life estate, you generally must record the name of the life tenant and signify that she “retains a life estate.” After that, you must record the identity of the person who will receive the property when the life tenant dies and say she will retain a “remainder” interest in the property.
Read More: What Happens if the Remainderman in a Life Estate Deed Dies?
If the remainderman dies before the life tenant does, what happens next depends on several circumstances. If the original grantor of the tenancy is alive, the deed that created the life estate may allow the grantor to choose another remainderman. If the document creating the life estate does not allow the remainderman to be changed, the remainder rights generally go to the remainderman’s estate. If the remainderman has a will, it should dictate who will receive the rights to the property.
John Cromwell specializes in financial, legal and small business issues. Cromwell holds a bachelor's and master's degree in accounting, as well as a Juris Doctor. He is currently a co-founder of two businesses.