HOW TO SET UP A LIFE ESTATE IN OHIO
A home is often the most valuable piece of property you will ever own. You likely want to protect it, even after you pass away. There are several legal avenues available that you can take to ensure your home passes on to the individual or group you intend. The life estate is a less commonly used method, that is only used in specific situations.
WHAT IS A LIFE ESTATE?
A life estate, sometimes called a right of occupancy, is a legal agreement that allows a property owner to split their ownership interest. They may use and enjoy the property during their lifetime, and automatically transfer the ownership to another individual at their death. This person is called the remainderman.
For example, the owner of a cabin could legally split their ownership interest in the cabin, allowing them to possess and enjoy the cabin for the remainder of their life and then, at death, automatically pass full ownership of the cabin to a named individual.
HOW TO CREATE A LIFE ESTATE
Using a life estate deed is one way to establish a life estate. This type of deed must include careful language that identifies who will own the life interest and who will receive the remainder interest. The life tenant has the right to possess and enjoy the property during their lifetime, and the remainderman has the right to receive the property when the life tenant dies.
Once a life estate deed is properly drafted, signed, and notarized, it needs to be recorded in the appropriate county's land records office. After recording the deed, the individual with the life estate can use and enjoy the property throughout the remainder of their lifetime. The life interest holder is typically responsible for maintaining the property as well as any property tax liabilities.
You can also create a life estate through a trust. For example, a property owner could title their home in the trust’s name and, through specific language, designate who will have the right to use the property during life and who will receive the home at their death. You may find this to be much easier than drafting a deed and going through the land records office.
BENEFITS OF USING LIFE ESTATES
Probate avoidance. Whether you are using a life estate deed or a trust to create this type of split interest in property, probate avoidance is one of the major benefits. Probate is the process that one normally goes through to distribute property after someone's death. It is a public process that can be expensive and time-consuming. Incorporating a life estate into your estate plan can be an effective way to avoid your state's probate court system. Your house will be passed on to your intended beneficiaries relatively quickly. Beyond avoiding probate, life estates can create additional flexibility in how you pass your property on to your loved ones by resolving competing interests among beneficiaries.
Second marriages. A life estate can be particularly helpful when someone in a second (or third or fourth) marriage wants to allow their new spouse to continue to live in the family home until the spouse dies (life interest), with the home ultimately passing to the original owner’s children (remaindermen). This arrangement can ensure that both your current spouse and your children from an earlier marriage can enjoy the property as you intend, rather than the property passing to someone whom you never intended to receive it (such as your stepchildren).
Medicaid planning. A life estate can also be useful in a Medicaid planning context. The homeowner may want to continue to live in their home as long as possible and not want their home to be sold to repay Medicaid expenses. This is especially important if long-term care may be a part of your future.
In that case, you may want to consider a life estate deed. When that deed is recorded, the interest in the property would be effectively split, and if the Medicaid look-back period is satisfied (five years in most states), the value of the remainder interest would not be included in the original owner’s assets for Medicaid qualification purposes.
It is important to note, however, that states can vary in how they treat life estates for Medicaid qualification purposes. Using life estate deeds when planning for Medicaid eligibility can be an effective tool, but you should never undertake such planning without the careful guidance of an estate planning attorney who is familiar with your state’s rules.
DRAWBACKS OF USING LIFE ESTATES
Even though there are some definite benefits of using life estates when your situation calls for it, there are also some potential drawbacks to consider.
First, when you create a life estate in a traditional deed, you are creating a type of joint interest in that property that cannot be undone without the joint owner’s consent. For example, if you created a life estate for yourself with the remainder interest passing to your sibling at your death, you could not sell or borrow against the property without your sibling’s consent. Likewise, if you decided that you were angry with your sibling and wanted to make someone else the property’s remainder beneficiary, you could not change the remainder interest without your sibling’s consent.
Second, as mentioned above, the life tenant will generally be responsible for the expenses associated with maintaining the property, including taxes. If the life tenant is unable to afford such expenses, the remainder beneficiaries may not receive their full interest because of tax liens or other encumbrances on the property. These bills will need to be paid before the remainder beneficiaries receive full ownership of the property.
Third, a life estate does not protect the remainder interest from the remainder beneficiaries’ creditors. For example, if the life interest owner dies when a remainderman is going through a lawsuit, a bankruptcy, or a messy divorce, that person’s remainder interest could easily be seized by an opposing party to satisfy the remainderman’s debts or other legal obligations. In such a case, a trust with asset protection provisions would be a more effective tool for protecting the remainder beneficiaries’ interests from such threats.
Life estates can be an effective method for accomplishing certain estate planning goals, but they are not necessarily the right tool for all situations. The experienced estate planning attorneys at DuPont & Blumenstiel in Dublin, Ohio can help you determine if a life estate makes sense in your particular situation. If you want to protect your legacy, your wealth, and your property for future generations, we can help. Give us a call at 614-389-9711 to schedule an appointment.
To learn more about estate planning, read our Consumer's Guide to Estate Planning in Ohio here.