Most people are familiar with the term “life estate” as a way to give someone “life rights” to a property. While a life estate does accomplish this goal, setting up a life estate in California is not a one-size-fits-all solution and may even cause serious consequences for everyone involved.
What is a Life Estate?
A life estate is a form of ownership of real property. The person who holds the life estate is called the life tenant, and he or she is given rights to occupy the property until death. The other owner(s) are called remaindermen. While the life tenant is alive, the remaindermen retain an ownership interest in the property, but they cannot physically take possession of the property until the life tenant dies. Until then, the life tenant is granted full use of the property including the right to improve the home or even rent the property.
Why Would Someone Consider a Life Estate?
Senior homeowners often look to life estates as an alternative to transferring the property outright to someone else (usually an adult child). Many know that if they simply sign over the deed to an heir, he or she becomes full owner of the property and can do with it as he or she wishes. That means if there’s a falling out between dad and his adult son, for example, the adult son could theoretically put him out on the street. A life estate is then a way to transfer ownership of the property to a beneficiary, without the senior losing their rights to occupy the house or use it how they want during their lifetime. Likewise, a life estate helps loved ones avoid probate after the death of the life tenant, as the property passes directly to the remaindermen without needing a court action.
What Could Go Wrong?
More often than not, life estates go wrong. Here are some of the ways that this type of ownership interest can backfire on a senior and his or her heirs:
major decisions can be made without the approval of the remaindermen. For example, if mom is struggling to
pay the bills and wants to access the equity in her house to help get caught
up, she won’t be able to take out a line of credit without the approval or her
adult son and daughter who have a remainder interest in the property. Maybe
daughter doesn’t agree with mom’s decision to take out a loan and refuses to
sign. Mom cannot legally proceed.
a loan can be extremely difficult on a property with a life estate.
Using the last example, even if daughter did finally agree to apply for
a home equity line of credit on the property, banks are notoriously difficult about
lending money on a home with a life estate.
life estate could trigger a Medicaid penalty. If dad gets sick and needs to go into a
nursing home within five years of creating a life estate, the transfer of the
home could cause a penalty period, which delays qualification for Medicaid benefits
to pay for care. The penalty depends on
the state where the senior will hold the life estate (there is no “lookback
period yet here in California, although one has been in the works) and
timeframe of the transfer. Any penalty period could vary from a few months to a
few years. During this time, the senior will likely need to pay out-of-pocket
for care costs until benefits kick in.
- The life tenant is exposed to the normal risks of joint ownership. Say an adult son who is the remainderman of mom’s life estate dies suddenly in a car accident. His wife Karen (who has a terrible relationship with mom), may now retain ownership rights in mom’s home, and worse, any decisions mom wants to make now have to be approved by Karen. The life tenant is also exposed to financial risks of her joint owners in the event they go through a divorce, file bankruptcy or experience any other creditor situation.
A Life Estate is Not a DIY Planning Solution!
Life estates have the reputation of being quick, easy and inexpensive estate planning solutions, but very few people understand the drawbacks and long-term risks that may come as a result of this form of ownership. In many cases, there are safer ways to accomplish the senior’s goals, and that’s why important to talk to an estate planning lawyer if you are considering the creation of a life estate so that you are empowered to make the best decisions for yourself and your loved ones. If you need help getting started, our Orange County attorneys are here to assist you. Contact us at (949) 260-1400 to schedule an appointment.