[WSBARP] Life estate

Mon Dec 5 10:58:48 PST 2016

I assume the mortgage was signed by a fee owner.  If it wasn’t then there are other issues.

From: Eric Nelsen 
Sent: Friday, December 02, 2016 11:10 AM
To: WSBA Real Property Listserv 
Subject: Re: [WSBARP] Life estate

Life tenant is responsible for taxes, insurance, maintenance and repair, and has a duty to remaindermen not to commit waste. Mortgage isn't entirely clear to me if it's pre-existing, but I think under RCW 11.12.070, it's probably the responsibility of the life tenant as the current possessory interest in the real estate:

http://app.leg.wa.gov/RCW/default.aspx?cite=11.12.070

When any real or personal property subject to a mortgage is specifically devised, the devisee shall take such property so devised subject to such mortgage unless the will provides that such mortgage be otherwise paid. The term "mortgage" as used in this section shall not include a pledge of personal property.

>From WSBA Real Property Deskbook Vol. 3 Ch. 1.3:

A life estate terminates with the death of the life tenant (or the death of the measuring life). Parr v. Davison, 146 Wash. 354, 262 P. 959 (1928). In relationships with neighboring landowners (e.g., nuisance, support), the life estate has the same characteristics as the fee simple absolute. The life tenant has the right to undisturbed possession. A life tenant who commits waste may be subject to a suit for damages or an injunction on behalf of the remainderman. By statute in Washington, the life tenant committing waste is liable for damages to "any person injured thereby"; in addition, the court may decree a forfeiture. RCW 64.12.020; see McDowell v. Beckham, 72 Wash. 224, 130 P. 350 (1913). See also Volume 4, Chapter 5 (Waste), of this deskbook.

Both the life tenant and the remainderman may recover for damages inflicted by third persons against the land. The life tenant, like the fee owner, has the privilege of taking issues and profits of the land, but only, of course, during the period of his or her tenancy. A life estate is transferable inter vivos, but again the life tenant can transfer only what he or she has. A holder of a life estate pur autre vie (for the life of another) can transfer the estate at his or her death, but only for the duration of the measuring life.

The life tenant is bound to keep the premises in repair and to pay taxes but is under no obligation to make improvements. In re Brooks' Estate, 44 Wn.2d 96, 265 P.2d 833 (1954); McDowell v. Beckham, 72 Wash. 224. The life tenant who makes improvements acts voluntarily and has no claim against the reversioner or remainderman for reimbursement. In re Brooks' Estate, 44 Wn.2d 96; Stahl v. Schwarz, 81 Wash. 293, 142 P. 651 (1914).

Generally speaking, the life tenant is required to pay real estate taxes on the property during the life estate. The grantor may, however, require that payments be made by the holder of the future interest, but probably may not do so if the value of the future interest will not secure the payments. In re Estate of Campbell, 87 Wn. App. 506, 942 P.2d 1008 (1997). A life estate is subject to claims of the life tenant's creditors, but that liability, again, ceases with the termination of the life estate, i.e., the death of the life tenant (or the measuring life).

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

Please Note that We Have Moved. We have moved our Seattle office to Mount Baker Ridge (a small commercial community just above the I-90 tunnel). Our new address is 1417 31st Avenue South, Seattle WA 98144. All other contact information remains the same.

From: wsbarp-bounces at lists.wsbarppt.com [mailto:wsbarp-bounces at lists.wsbarppt.com] On Behalf Of Bryce Dille
Sent: Friday, December 02, 2016 10:19 AM
To: wsbarp at lists.wsbarppt.com
Subject: [WSBARP] Life estate

I have an estate where the will (prepared by non-lawyer) leaves a life estate in separate real property to spouse (family home acquired prior to marriage) with remainder to children. There is nothing in will as to maintenance taxes etc.  responsibility. Under common law who is responsible for those items including the underlying mortgage, the life tenant or the remainder men? Thanks for your input.

                 Bryce H. Dille | Attorney at Law

                        P: 253.848.3513| F: 253.845.4941

                        317 South Meridian

                        Puyallup, WA 98371

                        bryced at cdb-law.com

                        www.cdb-law.com

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