Real estate can be transferred in a wide variety of interesting ways. There are transfers that create a present interest, others which create a future interest, and some which create both. Today, we are going to be talking about one of those hybrid transfers that creates a present and future interest simultaneously: the life estate.
The Meaning of Life (Estate)
A life estate is, as its name suggests, an interest in land that lasts for the duration of a “measuring life.” The measuring life is usually the person holding the interest, but it doesn’t have to be. Let’s flesh this out with a couple of examples. If you transfer an interest in a piece of property to your son for his life, then you have granted him a life estate in that land. On the other hand, you might transfer an interest in property to your son for the life of his grandfather, in which case you have granted your son a life estate pur autre vie (for the life of another).
In both of the examples above, your son was the holder of the life interest. It was your son who could fully and completely use and enjoy the land as he wished for the duration of the life estate. The difference is that, in the first example, your son was the measuring life – his interest ends when he dies. In the second example, however, your son’s grandfather was the measuring life, so your son’s interest would terminated upon the death of his grandfather.
What happens to the property upon the conclusion of the life estate? It transfers automatically to the person holding the remainder interest, and they then hold the land in fee simple. For example, you can grant an interest in land to your son for his life, then to your grandson. Here, you’ve created a life estate in your son, and a remainder in your grandson. There are very specific rules regarding how you can assign remainders, including whether they are vested and contingent, and whether they violate the rule against perpetuities, but these are matters for another article. For now, just understand that a remainder is the interest held by a person who takes the land upon the conclusion of a life estate. If you have additional questions or concerns about these additional nuances, you should speak with a real estate attorney in your area.
What can You do with a Life Estate?
As mentioned above, a life estate entitles the interest-holder to possession of the land for the duration of the life estate. They can live on the property, or they can lease it out and enjoy any profits generated by it. They are also free to transfer whatever interest they have in the land, namely a life estate. In other words, your son could transfer his life estate in the land to his friend, and upon the death of the measuring life, your son’s friend’s interest would cease.
One of the things you can’t do with a life estate is devise it (transfer it by will) or leave it to your heirs by intestate succession (transfer to heirs without a will). The rationale behind this is actually quite obvious and necessarily follows based on how life estates work. To borrow our example from above, if your son has a life estate in land that is measured by his life, obviously he cannot transfer his life estate in his will – his interest in the property ended instantly upon his death, so there is no existing interest to transfer by will after his death. Instead, the property would transfer automatically to your grandson, the holder of the remainder interest.
Another thing you cannot do with your life estate is commit waste. There is a very logical reason for this, too. Waste is the term applied to material changes made to land by a life estate holder. Waste can be voluntary (you do something that decreases the value of the property), permissive (you allow something to happen to land that decreases its value), or ameliorative (you do something or allow something to happen to land that increases its value. All of these varieties of waste are prohibited, because the person holding the remainder interest has a future stake in the land, and deserves to have it maintained in good condition for when the life estate ends and they receive title. The law therefore prevents you from doing anything to decrease the value of the land, and also prevents you from making value-increasing changes because even valuable changes might make the land into something the remainderman doesn’t want.
A life estate can be a good option for ensuring land is transferred to one party for life, and then transferred automatically to another party after the death of the first party. It does not require a will and does not need to go through the probate process, and can therefore be much neater and faster. Be sure to speak with an attorney to ensure that this is the type of transfer that you wish to make, and that you do it properly.