Posted on April 17, 2023 by Harman Bual
In the State of Washington, a life estate is a legal arrangement where a person, known as the “life tenant,” has the right to use and occupy a property for the duration of his or her life. The life tenant has all the same rights and responsibilities as a regular owner, but only for the length of his or her life. After the life tenant passes away, the property is transferred to another person or entity known as the “remainderman.”
For example, an interest in real property can be granted to a sibling, spouse, or elderly family member for the duration of their life and then will transfer back to the remainderman.
A life estate can be created by a deed or will, and it can be used for a variety of purposes. A person may create a life estate to ensure that their spouse or partner has a place to live after they pass away, while still ensuring that the property eventually goes to the decedent’s children or other heirs. Alternatively, a person may create a life estate to retain control over a property during their lifetime, while still transferring ownership to someone else after they pass away.
A life estate tenant has certain rights to use and occupy the property for the duration of their life; however, the tenant also has certain duties and responsibilities, including but not limited to:
- Paying property taxes: The life tenant is responsible for paying property taxes on the property during their lifetime.
- Paying for upkeep and maintenance: The life tenant is responsible for maintaining the property and keeping it in good repair during their lifetime.
- Not committing waste: The life tenant cannot damage or destroy the property or allow it to deteriorate to the point where its value is diminished.
- Not selling or mortgaging the property: The life tenant cannot sell or mortgage the property without the consent from the remainderman.
- Not changing the nature of the property: The life tenant cannot make significant changes to the property like subdividing the property or converting the property to a different use without consent from the remainderman.
- Not interfering with the remainderman’s interest: The life tenant cannot interfere with the remainderman’s right to receive the property after the life estate ends.
These duties are meant to ensure that the property is maintained and preserved for the remainderman’s benefit, and that the life tenant does not act in a way that would harm the remainderman’s interest in the property.
As a general rule, unless the will expressly provides otherwise, “one who takes a life estate in the property of a decedent elects to take as a whole with the benefits of the income and profits, and under the corresponding burdens of the current expenses such as taxes, repairs, and other upkeep, viewing the estate as a whole.” Matter of Est. of Irwin, 10 Wn. App. 2d 924, 928–29, 450 P.3d 663(Where is the year?), quoting In re Brooks’ Estate, 44 Wn.2d 96, 98, 265 P.2d 833 (1954). Meaning, a life estate tenant is not guaranteed that any mortgage on the real estate, property taxes, or costs related to repair and upkeep will be designated to the life estate tenant unless explicitly designated in the will or trust. Grantors of a life estate often fail to make provisions or directions in their will or trust addressing the payment of any mortgages on the real estate of life estate tenant’s or otherwise setting aside funds for the life estate tenant related to payment of taxes and upkeep.
In situations where a life estate tenant cannot or fails to fulfill their duties related to the maintenance and preservation of the real property, the remaindermen must seek a court order requesting the termination of the life estate to prevent a foreclosure on the property for failure to pay real estate taxes or to prevent damage to the real estate’s value due to waste.
A life estate goes beyond granting an individual an interest in real property for life and requires the grantor to consider the life estate tenant’s ability to maintain the property throughout the duration of their interest, especially if the life estate interest is given after the owner’s death. This process requires thoughtful drafting of estate planning documents with consideration for financing to maintain the real estate, as well as ongoing management and tax implications.
If you need assistance with estate planning, or management of tax implications after the loss of a loved one, the attorneys of Lasher’s Estate Planning and Trusts and Estates Litigation teams are ready to help.