[WSBAPT] Real Property Bequest Subject to Life Estate

Tue Apr 12 14:47:54 PDT 2022

I will say that Eric gave me advice on this matter approximately 2 years
back for someone who was on their deathbed.....so grateful for this
assistance and these tips because nearly EVERY condition that was listed
was tested by the individual who was granted the right to remain - such
that ultimately, they stated that they would disclaim the right and allow
the property to be sold and the residue distributed to the other family
members.

Eric - if you don't feel it enough - you are part of the crown jewels of
this listserv for your willingness to assist others.

This email just triggered the memory of help and given that we work in a
field where we tell our clients (daily) to not leave things unsaid, I felt
it needed to be said about Eric.

Brent

*Brent Williams-Ruth* (pronouns: he/him)
*Attorney-At-Law*

*Law Offices of Brent Williams-Ruth, **a division of BWR Consulting, PLLC*

*Physical Address: 500 S 336th Street, Suite 214; Federal Way, WA 98003*

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On Tue, Apr 12, 2022 at 2:39 PM Eric Nelsen <eric at sayrelawoffices.com>
wrote:

> In my experience, a true “life estate,” as in the old-fashioned defeasible
> fee, is seldom a good idea because it leaves all kinds of potential issues
> unresolved as to rights and duties of the owner and the remainder interest.
> Better to put the property in an express testamentary trust so that terms
> can be elaborated.
>
>
>
> Typically when a layperson says “life estate” they’re basically talking
> about a desire to give the beneficiary the right to live in the house
> rent-free. But who pays mortgage, taxes, insurance, repairs, maintenance?
> What happens if the beneficiary neglects the property and it starts to
> badly degrade? What if someone else moves in with them? Can the beneficiary
> rent the property out?
>
>
>
> Here’s my laundry list of problems I identified in course of litigating
> some years back (in relation to a surviving domestic partner being allowed
> to live at the house after decedent’s death), and thinking about how EP
> could minimize potential issues:
>
>
>
> Will provisions for a post-death occupant of house:
>
>
>
>                 gift is only a right to occupy and is conditioned on
> fulfilment of all conditions herein. right to occupy is not assignable and
> may not be shared except for casual overnight visiting guests.
>
>                 gift includes right to occupy without payment of rent
> during pendency of probate, but during pendency of probate the beneficiary
> must cooperate in allowing access to the property to the full extent the PR
> finds it necessary or convenient, at any time, upon 12 hours' oral or
> written notice or no notice in case of emergency.
>
>                 gift is not a life estate. the gift is intended solely as
> an accommodation to my partner to allow her/him to continue to live at the
> property where we lived together. my intent is for all value of the real
> property to pass to my residue heir subject only to this limited right to
> occupy which has no market value, for the full value of the property to be
> preserved for the residue heir, at occupant's expense during occupancy, and
> without any financial burden on my estate or residue heir during occupancy.
>
>                 right to occupy is not exclusive as against the estate
> (not residue heir) retains rights to enter and inspect to the same extent
> as a tenant-in-common, and estate may store tangible personal property that
> belonged to decedent at time of death until probate is closed.
>
>                 right to occupy belongs to partner only and may not be
> extended to any overnight guests for longer than seven (7) days out of any
> six (6) week period; provided, partner may have a paid in-home licensed and
> certified caregiver
>
>                 occupancy defined as: actually occupying the home on an
> overnight basis for at least five weeks out of every ten weeks [except
> winter snowbird? except up to 90 days if hospitalized or in convalescent
> care?].
>
>                 estate has a right to maintain exterior surveillance
> cameras and other equipment to keep house secure and monitored.
>
>                 must pay for reasonable maintenance and repair. scope of
> reasonable maintenance and repair includes without limitation maintaining
> roof secure from leaks; maintenance of exterior envelope against water
> leaks; repair or replacement of refrigerator, oven/range, washer/dryer,
> microwave; regular mowing and trimming of yard and curtilage; [etc.]
>
>                 must pay all property taxes when due.
>
>                 must pay all utilities when due.
>
>                 must pay for and maintain homeowner insurance for full
> replacement value of the house, naming residue heir as insured; shall cover
> for fire, and flooding if necessary, but not responsible for earthquake
> coverage; shall include inflation rider to maintain full coverage; occupant
> to select the company with residue heir's approval, which approval shall
> not be unreasonably withheld.
>
>                 residue heir has right to direct access to and
> communication with insurer
>
>                 must pay mortgage?
>
>                 if estate has insufficient other assets to pay all costs
> of administration and lawful claims against the estate, then estate may
> sell the house and substitute a gift to occupant calculated as $X per year
> by actuarial table of occupant's life.
>
>                 residue heir to have right to routinely inspect the
> property no more often than semi-annually upon 48' hrs notice to occupant,
> and additional right to enter at any time without notice in emergency to
> preserve property value
>
>                 residue heir right to receive annual accounting relating
> to payments, maintenance and repair
>
>                 notice of default and opportunity to cure, residue heir to
> have right to issue
>
>                 residue heir to have right to use unlawful detainer
> procedure for failure to meet requirements, award of atty fees to
> prevailing party
>
>
>
> Sincerely,
>
>
>
> Eric
>
>
>
> Eric C. Nelsen
>
> Sayre Law Offices, PLLC
>
> 1417 31st Ave South
>
> Seattle WA 98144-3909
>
> 206-625-0092
>
> eric at sayrelawoffices.com
>
>
>
> *Covid-19 Update - *All attorneys are working remotely during regular
> business hours and are available via email and by phone. Videoconferencing
> also is available. Signing of estate planning documents can be completed
> and will be handled on a case-by-case basis. Please direct mail and
> deliveries to the Seattle office.
>
>
>
> *From:* wsbapt-bounces at lists.wsbarppt.com <
> wsbapt-bounces at lists.wsbarppt.com> *On Behalf Of *Inge Fordham
> *Sent:* Tuesday, April 12, 2022 2:02 PM
> *To:* WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
> *Subject:* [WSBAPT] Real Property Bequest Subject to Life Estate
>
>
>
> Upon his death, PC wants to leave his real property to his step-son
> subject to a life estate in his sister.  What’s the best way to go about
> this?  Just include a bequest to the stepson, subject to a life estate in
> sister, in the last will and testament?  Is there such thing as a TOD deed
> to John Doe subject to a life estate in Sarah Appleseed?
>
>
>
> [image:
> uc%3fexport=download&id=1W3rEcChy0_E0cCfV5up02mkhwnL6eWIs&revid=0B4P5JoIHdbFaR29EbHlRWHFseFV5STZpSUVGeUNPWldkVDFVPQ]
>
> *Inge A. Fordham | Attorney*
>
> Fordham Law, PLLC
>
> 3218 Sixth Avenue | Tacoma, WA 98406
>
> Office: (253) 348-2657 | Mobile: (206) 778-3131
>
> www.fordhamlegal.com
>
>
>
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