[WSBARP] Dissolution/Property Question

Tue Apr 30 14:17:22 PDT 2024

Agree with Jeanne, and with Geoff—detailed trust provisions are better than a traditional life estate. I’ve posted this before, but here’s my laundry list of issues to think about that I have seen cause disputes from a traditional life estate (in the context of a gift in a will, but issues are mostly applicable here too I think):

                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
                Must maintain the home in a clean and orderly condition and not allow the cleanliness of the home to deteriorate to the point of unsanitary conditions or unsafe conditions because of accumulation of personal property (hoarding).
            Must have estate's permission to have [or continue to have or add to number of] pet(s) on the property and must prevent damage to the interior or exterior yard of the home caused by the pet(s).

Sincerely,

Eric

Eric C. Nelsen
Sayre Law Offices, PLLC
1417 31st Ave South
Seattle WA 98144-3909
206-625-0092
eric at sayrelawoffices.com<mailto:eric at sayrelawoffices.com>

From: wsbarp-bounces at lists.wsbarppt.com <wsbarp-bounces at lists.wsbarppt.com> On Behalf Of Jeanne Dawes
Sent: Tuesday, April 30, 2024 1:45 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com>
Subject: Re: [WSBARP] Dissolution/Property Question

If the recipient of a life estate needs to apply for Medicaid the value of the life estate is determined by DSHS’s (and SSA’s) Table-Unisex Life Estate or Remainder Table, and I believe it is a countable asset.

Another alternative is to put it into an irrevocable trust for benefit of resident spouse, with the nonresident spouse (Trustor) being the reminder beneficiary when resident spouse dies or permanently vacates the home.   I know it’s more complicated, but you can also provide for the expenses that beneficiary must pay, and if breached, the trust can be terminated.

Jeanne

Jeanne J. Dawes
Attorney at Law
Gore & Grewe, P.S.
103 E. Indiana Avenue, Suite A
Spokane, WA 99207-2317
Voice:  509-326-7500
Fax:      509-326-7503
jjdawes at goregrewe.com<mailto:jjdawes at goregrewe.com>

[cid:image001.png at 01DA9B08.7B405BF0][cid:image002.png at 01DA9B08.7B405BF0]
INFORMATION CONTAINED IN THIS E-MAIL TRANSMISSION IS PRIVILEGED AND CONFIDENTIAL.

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> <wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>> On Behalf Of Mark McClure
Sent: Tuesday, April 30, 2024 1:13 PM
To: WSBA Real Property Listserv <wsbarp at lists.wsbarppt.com<mailto:wsbarp at lists.wsbarppt.com>>
Subject: Re: [WSBARP] Dissolution/Property Question

Life estate while reserving remainderman interest?

Mark C. McClure | Managing Attorney
Law Office of Mark McClure, PS
"Why Retire With Debt?"
1103 West Meeker Street, #101
Kent, WA 98032
Office:  253.631.6484 (Leave Msg - Will be returned within 24 hours)
Email: Mark at McClureLawGroup.com<mailto:Mark at McClureLawGroup.com>
Web: www.McClureLawGroup.com<http://www.mcclurelawgroup.com/>
Notice of Unavailability:       May 8, 2024 – May 12, 2024; June 14, 2024 - June 21, 2024
**NOTE** All visits must be scheduled in advance for access to the building.  Call 253-631-6484  to schedule.
CONFIDENTIALITY NOTICE: This email contains legal stuff. If you are not the intended recipient you could get into a lot of trouble if you read it, and even more trouble if you tell someone else about it. So, the best thing to do is ignore it and forget you ever saw it. Thank you.

From: wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com> [mailto:wsbarp-bounces at lists.wsbarppt.com<mailto:wsbarp-bounces at lists.wsbarppt.com>] On Behalf Of Lynn Clare
Sent: Tuesday, April 30, 2024 1:08 PM
To: WSBA Real Property listserve
Subject: [WSBARP] Dissolution/Property Question

What would be the best way for divorcing spouses to transfer ownership of real property to one  spouse while allowing the other spouse to live in the property until their death?  Has to be irrevocable.
--
Lynn Clare
Clare Law Firm, PLLC
-------------- next part --------------
An HTML attachment was scrubbed...
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20240430/59802f07/attachment.html>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image001.png
Type: image/png
Size: 38000 bytes
Desc: image001.png
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20240430/59802f07/image001.png>
-------------- next part --------------
A non-text attachment was scrubbed...
Name: image002.png
Type: image/png
Size: 33452 bytes
Desc: image002.png
URL: <http://mailman.fsr.com/pipermail/wsbarp/attachments/20240430/59802f07/image002.png>