A life estate is a type of real property interest that grants someone ownership rights for their lifetime or someone else’s lifetime, and grants a future interest in another person or persons, known as “remainderman” or “remaindermen.” The owner of the life estate, known as the “life tenant,” generally has the right to possess and use the property and receive any profits generated by the property.
Generally, the life tenant may also sell or convey their life estate, but they cannot leave the entire property to someone in their will because in a regular life estate, the life estate ends when the grantee (owner) dies.
If a life estate is conveyed, the purchaser takes the estate subject to the life of the life estate grantee and subject to the rights of the remainderman.
When a life tenant dies under a regular life estate, ownership of the property automatically transfers to the remainderman or remaindermen.
A life estate pur autre vie is a life estate conveyed to someone for the life of someone else. For example, a life estate to a brother for the life of grandmother.
For this reason, life estates can be an excellent estate planning tool, as they allow homeowners to leave their property to the next generation outside of the expensive and time-consuming probate process.
With a traditional life estate, once the deed has been filed, it cannot be revoked or otherwise changed without the written consent of both the life tenant and the remainderman. However, Texas is one of a handful of states that allows people to create an “enhanced life estate.”
Also known as a “Lady Bird Deed,” an enhanced life estate allows the original homeowner, who holds the life estate, to occupy, use, mortgage, or sell the property or change the remainder beneficiaries at any time without the consent of the remaindermen. This allows the homeowner to enjoy the advantages of using a life estate while still maintaining control over the property.
What are the Pros and Cons of a Life Estate?
Using a life estate comes with both advantages and disadvantages. Most importantly, life estates permit a homeowner to automatically transfer their property to the beneficiary of their choice upon their death without going through probate. Life tenants in Texas also remain eligible for homestead and senior property tax breaks.
Additionally, life estates can be beneficial for Medicaid planning. Because a home transferred through the expiration of a life estate is not considered an asset of the life estate owner’s estate, it can’t be taken by creditors by filing a lawsuit against the estate. This includes “Medicaid estate recovery,” which allows the government to sue an estate to recover the cost of Medicaid treatment that the deceased party received.
However, there are also some disadvantages to a life estate as well. A traditional life estate restricts the homeowner’s ability to sell or mortgage or lease the property during their lifetime and cannot be easily revoked if circumstances change.
Additionally, because a life estate creates a property interest for the remainderman, the home can be subject to debt collection actions such as liens that are filed against them. This is true even during the owner of the life estate’s lifetime.
Fortunately, Texas property owners can avoid these issues using a Lady Bird Deed. Since the remainderman’s interest can be revoked at any time, their creditors cannot go after the home while the life estate owner is still alive. The homeowner can also choose to sell or mortgage or lease the home at any time without needing the permission of a remainderman.
What are the Two Types of Life Estate?
In Texas, life estates are most commonly created by deed, as discussed above, and through the Texas Estates Code.
The Texas Estates Code allows heirs to receive a life estate in particular circumstances as an operation of law. For instance, under Texas Estates Code Section 201.002, if a person dies without a will, their surviving spouse is entitled to a life estate in one-third of the deceased person’s separate real property, with the remainder going to the person’s children or their children’s descendants.
Who Owns the Property in a Life Estate?
The owner of a traditional life estate maintains certain rights to use the property while transferring future interest of the property to the remainderman that is not vested until the death of the life tenant or another person. However, with a Lady Bird Deed, the homeowner maintains their ownership interest during their lifetime.
Like most estate planning devices, life estates can create complications and disputes between interested parties. For instance, under a traditional life estate, the life tenant has a duty to the remainderman to avoid “waste,” which is the unreasonable or damaging use of the property. When a life tenant commits waste, the remainderman can pursue a civil action against them or if the life tenant is deceased, their estate representative.
Another common dispute between a life tenant and remaindermen is costs related to the property. For example, a life tenant is responsible for the property taxes, insurance, and maintenance of the property. When a life tenant fails to pay those property costs, the remaindermen may seek court intervention related to non-payment.
If you are involved in a legal dispute involving a life estate, it’s vital that you discuss your situation with an experienced probate litigation attorney as soon as possible. This type of litigation can be complicated, and you’ll need an experienced professional to guide you through the process.
Have questions? We’re happy to discuss.
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About RMO, LLP
RMO LLP serves clients in Los Angeles, Santa Monica, Ventura, Santa Barbara, San Francisco, Orange County, San Diego, Kansas City, Miami, and communities throughout California, Florida, Missouri, and Kansas. Our founder, Scott E. Rahn, has been named “Top 100 – Trust and Estate Litigation” by SuperLawyers, Trusts and Estates Litigator of the Year, and Best Lawyers in America for Litigation – Trusts and Estates. For a free consultation, call (424) 320-9444 or visit: https://rmolawyers.com.