WHAT IS A LIFE ESTATE?
A life estate is a term used to describe ownership of an asset for the duration of a person’s life. A Life Estate may be created in real property or in personal property.
The owner of a Life Estate is called a ‘life tenant’.
The life tenant has the right to possession and enjoyment of the asset and its income until the life tenant’s death or another event specified in the life tenancy.
Once the life tenant dies or the life tenancy ends, ownership of the asset goes to the ‘remainderman’. The remainderman is the person or persons entitled to take the asset upon the termination of a Life Estate.
HOW IS A LIFE ESTATE CREATED?
A life interest or life tenancy can be created by a deed or a will.
In the case of property, if you grant someone a life estate by deed or under a will, the life estate will be registered with the Land Titles Office and the life tenant then has the right to occupy and use the property.
You can also create a determinable Life Estate. This means that a Life Estate will be granted or bequeathed to a life tenant on a condition. If the condition is breached, the life tenant will lose ownership of the land and it will go to the remainderman or back to the grantor.
HOW IS A LIFE ESTATE TERMINATED?
- A Life Estate terminates automatically when the life tenant dies.
- If a Life Estate is granted on a condition (e.g. that the life tenant pay for the costs of the Life Estate), the Life Estate may terminate if the life tenant violates that condition.
- The life tenant and the remainderman can agree to sell the assets of the life estate or to each other.
- The Supreme Court can grant an order to sell the whole or part of the Life Estate in certain circumstances.
WHAT RIGHTS AND DUTIES ARE CONFERRED ON THE LIFE TENANT?
The general rule of a life estate is that the life tenant is granted the right to use the property or asset for the duration of their life tenant’s life.
Other conditions, rights and duties might be attached to the life estate but these will vary depending on the needs and desires of the parties when creating the life estate. Some conditions could include:
- that the life tenant may be able to lease the land for short periods of time;
- that the life tenancy may be able to remove and add fixtures to the land for particular purposes (such as ornament or domestic convenience);
- that the life tenant (or another person) be responsible for maintaining the land or asset at their expense;
- that the life tenant (or another person) insure the land or asset;
- that the life tenant (or another person) keep the land or asset in good working order and condition;
- that the life tenant (or another person) pay rates, land tax, water and other service costs attached to the life estate land;
- that the life tenant not be permitted to do certain things – such as dismantle any improvements on the land;
- that the life tenancy may end if the life tenant elects to leave the land or doesn’t live in it for more than a certain period (e.g. three consecutive months).
WHAT ARE THE ADVANTAGES?
A Life Estate is a convenient way to apportion the benefit in land by ensuring that one beneficiary has the use of the land for the duration of the beneficiary’s life and that the capital is preserved for another (often younger) beneficiary. For example, a Life Estate in property granted to a spouse will enable him or her to have the use of the property during his or her life time. The grantor can then ensure that his or her child (or children) is the beneficiary of the asset upon the spouse’s death. This is particularly advantageous where there has been a second marriage and the grantor has children from a previous marriage.
A Life Estate can also ensure that the asset remains in the family for the next generation. However, this can be defeated if the life tenant and remainderman agree to sell the land.
WHAT ARE THE DISADVANTAGES?
It is easy to create a Life Estate but many difficulties arise when the life tenant wants to deal with the asset. A Life Estate can unnecessarily tie up large amounts of capital and it can become burdensome. The major disadvantages are:
- Awkward to own. The life tenant can have difficulty mortgaging the asset unless they have the consent of the remainderman which can be given or refused at their complete discretion.
- Conflict. It can cause unnecessary conflict between the life tenant and the remainderman. The life tenant has no motive to improve the asset. Where the asset is land, the life tenant may fail to keep the asset in repair. Where the life estate is in money, the life tenant may only be interested in maximising the interest he or she can receive and may not be concerned with any capital gain. It may prove difficult for a life tenant and remainderman to come to an agreement about how the life tenant will maintain the asset.
- Can be contested. It may provide inadequate provision for a surviving partner’s proper maintenance and support. A life tenant may contest the Life Estate by bringing a family provision claim under the Succession Act 1981 (Qld). For example, a Life Estate may be inadequate for a younger beneficiary who wants to manage his or her own economic affairs or decide where he or she wants to live. Alternatively, the responsibilities of upkeep and maintenance might be inconvenient.
- Trustee selection. A Life Estate created in a will encounters the added complication of selecting a satisfactory trustee to monitor the interactions of the remainderman and the life tenant. Administering a Life Estate over what often becomes many years, increases the costs of administering the estate and is an enduring burden.
- Remaindermen are delayed – many remaindermen are often waiting for their inheritance for a significant period of time, whilst the life tenancy is in effect and receive little to no benefit in the meantime if the property that is the subject of the life tenancy is the sole or major asset in the estate.
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The information on this information sheet is general guidance only correct at the time of publication and is not legal advice. You should consult a lawyer for legal advice.