Perhaps you are in the process of estate planning and are hearing the term life tenant rights.
Curious what this means?
Well, if you’re currently working with an estate planner, the question may come up, “Should I gift my property to my children or spouse for planning purposes?”
In some cases, this makes sense.
In others, it does not.
When clients are considering gifting their property to their children or spouse, one of their primary concerns is that they do not want to lose the ability to live in or use the property after gifting it.
Fortunately, using a life estate deed, you can gain life tenant rights and continue to enjoy the property.
In this blog, we’ll talk about what this means and how it would work if you chose to go this route.
1. What is a life estate?
A life estate is a property that an individual owns and may use for the duration of their lifetime.
The individual who owns the property is called the life tenant.
The life tenant shares ownership of the property with another person(s).
This individual will automatically receive title to the property upon the death of the life tenant.
Life estates are often created by property owners to ensure that the next generation will eventually get the family land without the process of probate, which can often be quite lengthy.
It’s a type of joint property ownership, and under this ownership, the owners have the right to use the property for life.
The life tenant will retain all of their rights and responsibilities except, in many circumstances, the right to sell or mortgage the property.
2. What is the relationship between the life tenant and the remainderman?
As stated above, the life estate is a form of joint property ownership.
The life tenant and the “remainderman” share ownership.
Until the life tenant is deceased, the remainderman cannot take possession of the property.
The life tenant is able to live in the home, but is often not able to sell or mortgage it unless the remainderman is in agreement with that action.
The relationship between a life tenant and the remainderman is established with a deed that states that the occupant(s) of the property is able to live on the property for the rest of their lives.
The deed also names the person who will receive the property after the death of the life tenant.
A life estate is often created as a part of the estate planning process in the United States.
It grants the life tenant ownership of property without having to include it in the will as part of their assets.
As such, the property doesn’t go through the probate process.
This will both save the deceased’s family time and help to avoid the estate tax.
Of course, always be sure to get legal advice from an estate planning attorney before making key decisions.
3. What are life tenant rights?
Life tenant rights are the right to occupy, use, and enjoy the property for as long as they live.
Other than the fact that they cannot sell or transfer the property, a life tenant obtains all the typical rights that a standard owner would.
If they decide they want to sell/transfer the property or obtain a mortgage, then they can do this by working with the remainderman unless their right to sell the property is specifically laid out in the deed.
4. When does the life tenant’s interest in the property end?
Before death, the life tenant is responsible for all costs (i.e., property taxes, insurance, maintenance, etc.).
The life tenant also retains any tax benefits of homeownership while they are still alive.
However, the life tenant’s interest in the property ends at death.
After that, the ownership of the property is transferred to the remainderman.
5. What are the advantages of life estates?
A life estate serves as an estate planning tool
Estate planning is the process of designating who will receive your assets and handle responsibilities after your death.
Doing estate planning properly will ensure that your assets go to the right people after your death.
A life estate bypasses probate
Are you worried that your assets will be hung up in probate for months after you pass?
Creating a life estate can ensure that your assets and estate will pass directly to your beneficiary after your death without having to go through the complicated, expensive, and time-consuming process of probate.
A life estate removes the property from the estate
Life estate effectively removes the property from the estate so that it isn’t an estate asset.
This means that its value cannot be considered in a suit against the estate.
6. What are the disadvantages of life estates?
A life tenant cannot sell their property under a life estate
In many cases, you cannot sell your property once you create a life estate.
However, there are often several instances in which a life tenant may want or need to sell their land.
They may want to simplify their life.
They may need to pay for emergency medical issues and subsequent care.
Unfortunately, unless otherwise stipulated in the deed, the life tenant can only sell the property with the consent of the remainderman.
A life estate limits the life tenant’s flexibility
Overall, a life estate severely limits the life tenant’s flexibility.
If the life tenant desires to make improvements to the property (say in the form of renovations), then they may only be able to do so with the remainderman’s consent.
If the life tenant went to the bank to apply for a home equity line of credit, they would be denied because there is a life estate on the property.
Instead, the bank would need to receive a joint application from both the life tenant and the remainderman.
In many ways, this can be frustrating for the life tenant who has likely owned their property for a significant period and isn’t able to make decisions anymore without working together with the remainderman.
The other important aspect to keep in mind is the relationship that the life tenant and the remainderman have.
If the two have a falling out and aren’t able to agree on how to move forward, then this situation can become incredibly complex.
In fact, they may end up needing to resolve this with lawyers of their own.
7. What are the differences between a life estate and an irrevocable trust?
As you read this information, you may draw some parallels between a life tenant and an irrevocable trust.
An irrevocable trust is a tool used in estate planning that removes assets from the estate of the grantor.
The grantor will relinquish all of the rights to some assets and income and transfer them into a trust.
These assets may be cash, investments, or life insurance policies.
The beneficiary of the trust may be a spouse, the grantor’s children, or a charitable organization.
A life estate is similar in that it is also an irrevocable estate planning tool.
When a life estate deed is established, the life tenant cannot later alter the agreement without the consent of the remainderman.
However, unlike an irrevocable trust, a life estate provides the benefit of residence to the grantor.
An irrevocable trust is often used to reduce a person’s wealth on paper while transferring that wealth to family members.
So, like a life estate scenario, it will remove some of the person’s assets from an estate and eliminate them from the probate process.
A person may use an irrevocable trust if they are vulnerable to lawsuits.
For instance, if you’re a physician and you want to protect your assets by transferring them to a family member in a trust, then that can be a wise course of action.
8. What’s an example of a life estate?
An older couple may consider a life estate arrangement during their estate planning as an alternative to naming a beneficiary in their wills.
This will give them the right to stay in their home for the rest of their life and continue to have responsibility for the property.
Then, when they are both deceased, whoever they have named as remainderman (typically an adult child or children) will automatically take the title of the property without having to go through probate.
Likewise, another common scenario is when someone is widowed.
A widowed homeowner who can no longer live alone may create a life estate agreement with an adult child as the remainderman.
Once this agreement has occurred, the parent and child will co-own the property that the parent (the life tenant) will retain lifetime rights to until their passing.
Once they are deceased, the home will pass into the ownership of the child without any delay.
9. Can someone with a life estate sell the property?
Often a life tenant isn’t able to sell the property or take out a mortgage loan against the property unless the remainderman agrees or the deed otherwise stipulates.
Likewise, the remainderman cannot sell or mortgage the property during the lifetime of the life tenant.
10. How does a life estate deed work?
As mentioned above, the life tenant will retain most of the rights and obligations of property ownership under the life estate deed.
They can live in the home or rent it.
They are also responsible for taxes, insurance, and maintaining the property.
If there are any tax benefits of homeownership, then they will also go to the life tenant as well.
The remainderman is a co-owner of the property, but they do not have the legal rights to live it or use it until the death of the life tenant.
However, once a death certificate has been filed for the life tenant, then the remainderman can take possession.
11. Can you evict a life tenant?
No, for the most part, you cannot evict a life tenant unless you can prove they’ve committed some type of wrong to the property.
We recommend that you consult a local attorney familiar with life estates and life tenant rights so that you can understand the next best steps.
When you meet with your attorney, bring documentation regarding the life estate and the present condition of the property.
Final thoughts
Most people choose to create a life estate to avoid the probate court and processes.
These processes are long (at least six months) and complicated for their family members.
If there are any challenges with the inherited estate, then it can sometimes take years to obtain properly.
Life estates also give life tenants rights.
Life tenants retain all the rights that a typical property would outside of selling the property or obtaining a mortgage.
This means that the life tenant will be able to live on the property for the remainder of their life and continue to carry out their typical responsibilities.
It is only after their death that the remainderman will take over.
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Disclaimer: we are not lawyers, accountants or financial advisors and the information in this article is for informational purposes only. This article is based on our own research and experience and we do our best to keep it accurate and up-to-date, but it may contain errors. Please be sure to consult a legal or financial professional before making any investment decisions.
Prior to starting Gokce Capital, Erika received a Bachelor of Architecture from the University of Southern California and a graduate degree in Urban Policy from Columbia University. She worked as both an architectural designer and engineer in New York before joining the New York City Department of Housing Preservation and Development.
Erika currently lives in the New York Metropolitan area with her spouse, daughter and cat. She is originally from Chicago and still considers herself a midwesterner at heart.
Erika also loves to read, write and travel (fun fact, she has visited all 50 states and more than 30 countries!). Her new book, Land Investing Mistakes: 11 True Stories You Need To Know Before Buying Land, is now available on Amazon.
If the life tenant carries the insurance on the house and the house burns down who gets the proceeds?
Hello Craig, I would check with a local real estate attorney, but I would think the insurance holder would receive the proceeds.
if a person is in a lifetime house and needs to move out do they give up rights to the house and land.
Hello Fay, it depends on what is stated in the deed as well as local laws. I would recommend speaking with a local attorney.
In NY, if a life time property is sold, before death of the life time owner, who pays the taxes on the profit on the sale of the property? Can Nursing homes come after the funds from the sale of a life time property if the life time owner has to be put in the nursing home?
Hello James and Donna, my apologies, but since I am not a lawyer, I would recommend speaking with a local attorney as well as an accountant.
Have some land, Sister in-law once lived on it with my brother for a short time. and they moved off of this property. In to there own home. Since then he has pass. Does she have rights to this property now—that she does not live on. Does she have any rights to this property now.. it is just land no house or nothing just land. land has been vacant for fifteen yrs or longer.
Hello Billy, it depends on who was listed in the deed and the regulations of the state where the property is located. I would recommend speaking with a title company or a local attorney.
Well did’t know just how that works. They have been living in their own home 20-25 years now & he has pass now 10yrs now. They did have a single wide parked on @ that time. They then sold it and move to their new home & (( I’m thinking)) if she still has rights to it.
what rights do subtenants have after the live in dies? the surviving beneficiary is selling and i dont know any of my rights or where to look for resources as a subtenant.
Hello Erika, thank you for your comment. Unfortunately, since rules vary form state to state, the best I can do is recommend speaking with a local lawyer. Best of luck!
Life tenant has to go into a rest home. Can they be made to sell the house in order to pay bills?
Hello Fred, I don’t believe so, but I would recommend speaking with a local attorney.
I have a life estate with my son, who lives in the home. We are in NY and would like to take a small heloc for some home repairs and are both in agreement. There is no mortgage on the home. What is the best lender for this situation?
Hello Cathy, unfortunately, I cannot recommend a lender, but I would suggest starting with the big names (Chase, Bank of America, etc.) as well as your local credit union.
my wife and i have a life estate that we deeded to our daughter. my wife was in a serious car accident and she may be sued by other parties. can they make a claim against the
Hello Dallas, I would recommend speaking with an attorney, but according to this article, there is no protection against creditors with a life estate: https://www.policygenius.com/estate-planning/life-estate/
My son bought the houses while I was in the hospital ! We didn’t talk about any about buying our home before I went to the hospital. I have surgery in June 7 ,2022 .And then in July 12,2022 then back in the hospital .have surgery July 12,2022. I have a terrible infection stay in hospital August 4, 2022 . My came to the hospital July 13 ,2022 for me to sign papers for the house . My son have his wife and his son with him. And my son have the Notary Public with him . My husband sign papers without talk to me about sign papers . We have a disagree my husband Steve left our home for three weeks in May I can’t remember the day it was 2022 , Steve call me to see if he could come home ! I Brenda said yes u can come home ! I was so sick then , I kept tell him I was sick I , was sick before he left home.I do not remember much after that ,Went back in the hospital . The time I was in the hospital,I didn’t see my husband Steve!My son keep tell my husband was going to devoice me ! We have a lots of disagreement in the last 52years, Didn’t see my husband Steve till fall ! Steve my son said he can’t live with me ! I don’t think this is fair to my husband Steve and me Brenda. Can someone tell how proceed of getting help !We are back together now and for every
Hello Brenda, I’m very sorry to hear about your situation and I do hope that you are feeling better. I’m afraid I don’t have the expertise to advise on this matter. I would recommend speaking with a local real estate attorney to see what your rights are. I’m very sorry I can’t be of more help.