[WSBAPT] Life Estate Question

Wed Oct 18 10:16:12 PDT 2017

Heather's solution is elegant and avoids addressing whether or not it is a true life estate.

I do find it's rare to find a Will that actually, truly, gives a life estate in the full legal sense. There're always some caveats attached.

Josh's example, for example, "I give a life estate to GF for her life or until she vacates the residence for 60 continual days" is not a full life estate. I think it would be a life estate determinable, meaning the freehold of the life estate is subject to a condition that automatically triggers termination and passing of the property to the remainder interests.

One thought about Heather's solution, which I love and have used – it does not necessarily work if the Will does not do a reasonable job clearly setting out who is responsible for taxes, insurance, maintenance and repair. If it is true life estate, it's not a problem because background law imposes those burdens on the life estate holder. But if the life estate is impaired in some way, or the language of the Will does not expressly use the term "life estate," there is an ambiguity that must be resolved. And, if there is a mortgage on the property, it's an open question who pays for that – which I think brings us back around to the original question from Scott Kee.

Sincerely,

Eric

Eric C. Nelsen
SAYRE LAW OFFICES, PLLC
1417 31st Ave South
Seattle WA  98144-3909
phone 206-625-0092
fax 206-625-9040

From: wsbapt-bounces at lists.wsbarppt.com [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Heather deVrieze
Sent: Tuesday, October 17, 2017 5:25 PM
To: WSBA Probate & Trust Listserv
Subject: Re: [WSBAPT] Life Estate Question

Deed to kids “subject to GF’s right to reside in property pursuant to terms of Will filed at . . . “

That is something I have done in the past, keeps clear that the deed is subject to something, terms of the will are what would be fought over later if there was a problem, and the deed references where the Will, which is public record, can be found.

Heather

Heather S. de Vrieze
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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> [mailto:wsbapt-bounces at lists.wsbarppt.com] On Behalf Of Josh Grant
Sent: Tuesday, October 17, 2017 3:54 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Life Estate Question

I have a similar case. Testator said “I give a life estate to GF for her life or until she vacates the residence for 60 continual days”.  I hate to have the PR of the Estate give a deed to her granting her a life estate, because GF could leave and we would not be able to get clear title until we were able to get a death certificate, and the kids who take back possession want to fix it and sell it.  What kind of deed would be propose to the Judge?  Deed to kids and no mention of the right to reside?  And acknowledge in an unrecorded document the right to reside?

Thanks

Josh

From: Scott Kee<mailto:ScottKee at buddbaylaw.com>
Sent: Tuesday, October 17, 2017 12:14 PM
To: wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>
Subject: [WSBAPT] Life Estate Question

In his will, the decedent left property to his kids, but reserved a life estate his girlfriend.  The specific language is . . .”Girlfriend is entitled to reside in the real property located at  . . . . provided she pays the taxes and insurance on the property.  The residue of the estate goes to kids.

There is an underlying mortgage on the property and the decedent made no provision for, and did not mention, the mortgage.  In addition, maintenance has become an issue.

Girlfriend is taking the position that she is not responsible for the mortgage or maintenance as the decedent did not expressly indicate as much(see In Re Estate of Campbell) and she is not the ultimate beneficiary.

Kids are taking the position that Girlfriend is the devisee(see RCW 11.12.70) and therefore she is responsible for mortgage and maintenance.

Thoughts?

C. Scott Kee
Rodgers Kee & Card, P.S.
324 West Bay Drive, Suite 201
Olympia, WA 98502
(360) 352-8311
scottkee at buddbaylaw.com<mailto:scottkee at buddbaylaw.com>

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