[WSBAPT] Life Estate Question

Wed Oct 18 11:38:49 PDT 2017

You are right about our having an open issue regarding the taxes and insurance because its not a life estate.

I like Heather’s solution as well.  I am wondering, however, what a title company will require for the kids  to establish that she has moved out for the 60 days and therefore they are able to sell it free of the special exception of “pursuant to the terms of the Will...”? Because I am pretty sure the GF will not be signing any recordable document saying she is gone.   Maybe the title company will just accept a Warranty Deed when the kids later sell it.

From: Eric Nelsen 
Sent: Wednesday, October 18, 2017 10:16 AM
To: WSBA Probate & Trust Listserv 
Subject: Re: [WSBAPT] Life Estate Question

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
Attorney-at-Law

3909 California Avenue SW

Seattle, WA 98116-3705                          

(206)938-5500 

heatherd at westseattlelaw.com 

www.westseattlelaw.com 

Click here to connect with de Vrieze | Carney on Facebook:   

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From: 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>
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 

Sent: Tuesday, October 17, 2017 12:14 PM

To: 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

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