Life Estate in Residence

Life Estate in Residence

What type of rights does the holder of a life estate in a residence have? Parking? Utilities? What?


Let's first define life estate, then address your more specific question. A "life estate" is the right to live in a residence (or use, own or posses any property, it doesn't have to only be a residence) for the duration of your life. The word "estate" in this context does not refer to the "estate" of a person who has died (although the most common place life estates are created are under wills), but rather to the "interest", ownership or "estate" in the real property involved. It is referred to as a "life" estate since it is structured to last for a particular person's life. It does not have to always be measured by the life of the person using it, it can also be measured by another person's life as well (although this is much less common).

What rights a life estate holder (owner) has depends entirely on the instrument (legal document) creating the life estate. If the life estate is created by a deed (a common elder law planning device) or in a will (a common tool for blended families, second and later marriages, etc.) you need to review that deed or will (governing legal document) with a real estate or estate planning attorney in the state where the property is located (laws differ substantially by jurisdiction) to determine what your rights are.

The problem (and it can be a BIG problem) with many life estates is that the governing instruments are vague and general and give little indication of what the life tenants rights really are. The problems can be even worse in that most life estate governing instruments provide little detail on when the life estate ends, so it will only end with death. What happens if the life tenant is permanently disabled and living in a nursing home? The life estate may continue unless a court order can be obtained to somehow modify it.

So now for your question. It depends! If the governing instrument says you have parking, then you should have access to it IF (capitalized intentionally) the parking is legally part of the residence. Utilities probably have to be paid by the life tenant (that's what the person holding the life estate interest is called) unless the governing instrument provides to the contrary. Under most state laws the life estate tenant has to maintain the property, not commit waste (destruction, damage), etc. This can raise tremendous issues for those involved.

Example: You leave your third husband a life estate in your house. The will is silent about any details (which is unfortunately typical). What constitutes a repair that your third husband should pay for? What constitutes and improvement your children from your first marriage who will inherit the house on his death will have to pay for? Tremendous conflict and potential for fights.

You should consult local real estate and/or estate counsel and review the governing instrument with them. If there are open or vague items one of them will have to research state law to determine what state law provides for with respect to the rights of the life estate tenant. Don't expect this to be cheap.

If you are still planning the life estate, rather than dealing with an existing life estate, consult an estate planning attorney about structuring a trust that can address many of the possible issues that can arise. A well crafted trust owning the house can avoid many of the difficulties involved. However, if you really have some flexibility, consider alternative arrangements (especially if your fact pattern is similar to the example above).

Our Consumer Webcasts and Blogs

Subscribe to our email list to receive information on consumer webcasts and blogs, for practical legal information in simple English, delivered to your inbox. For more professional driven information, please visit Shenkman Law to subscribe.

Ad Space