What is a life estate?

The term “life estate” refers to property that is owned by an individual only through the duration of his or her lifetime. Therefore, it’s always for an indefinite period of time.   We usually encounter life estates when dealing with real estate. When you have a life estate, you are called the “life tenant.” For example, you can sell or give your home to your children, but retain a “life estate”, thereby reserving the right to live in, use, enjoy and control the home until you die. Your children would be called the “remaindermen.”

Why would I want a life estate?

Probate Avoidance: A life estate is a way to pass your home to your children or other beneficiaries without going through probate. If you own a home and the title is in your name alone at death, it will have to go through probate. Keep in mind that having a Will does not avoid probate and a Will simply tells the court how to distribute the property in your estate.

Tax Planning: Also, retaining a life estate in your home means that it remains an asset of your estate for estate tax purposes and allows your children to receive what is known as a step-up in basis of the real estate. This means they inherit the property at the date of death value, not the value as of the date upon which you acquired the property. So, when your children sell the property, they should be able to avoid capital gains, unless of course, the property appreciates to a value greater than the date of death value prior to the sale.

Protection for long-term care purposes: We often use life estates as a way to preserve the home for long-term care planning purposes. Without providing all of the details relative to the MassHealth rules, this type of transfer will trigger the five year waiting period for eligibility. After the five year transfer period, the property should be protected. However, a lien may be placed on the property, but only up to the value of the life estate and not the entire value of the property.

What are my responsibilities when I have a life estate?

When you are a life tenant, you are still responsible for paying the mortgage, property taxes and insurance and making repairs to the property.

Are there any problems with life estates?

There are problems that may arise and it’s important to fully understand the following risks:

• A life tenant, you may not easily sell or mortgage property with a life estate interest. The

remainderman must all agree if you decide to sell or borrow against the property. In addition, if the property is sold, the remainderman could demand a share of the proceeds equal to what their interest is determined to be at that time.

• You cannot simply remove or change a name once it is on a deed to real estate like you can change the beneficiary on a life insurance policy or bank account.

• Once any remainderman is named on the deed to your house, he or she has an interest in the home and his or her legal problems could become yours. For example, if your child, who is a remainderman, is sued or owes taxes, a lien could be filed against your home. Your child’s interest in the home is not protected if he or she files bankruptcy. If your child gets a divorce, his or her spouse could claim all or part of your child’s interest in your home. Should your child die before you do, the child’s estate would have to go through probate unless at least one other remainderman was listed as a joint tenant.

• As touched upon above, giving away an interest in property could disqualify you from receiving assistance should you require long-term care from the State. In addition, the State could have a claim against the value of your life estate for services rendered during the life tenant’s lifetime.

A life estate is a useful estate planning tool with valuable benefits, but is not for everyone. In many cases, the potential problems might easily outweigh the benefits. As the law in this area is complex, it’s important to talk to a lawyer who knows this area of the law well.