Question: My husband and I gave our children a deed reserving a life tenancy for us. I have since seen varied language used in life estate deeds of friends and family. Our lawyer has passed away, so I decided to look up our deed, online at the Registry of Deeds. I am a little worried. The registry lists the grantors as my husband and me, but it shows all four of us as the grantees. Is this a problem?
Answer: I took the liberty of looking up your deed based on your name in your email. Your life estate language is a bit different from others, as it names you both as grantees, and your kids as remainder men. However, the legal effect remains: you appear to have a life estate deed, like everyone else.
Surprisingly, there are many ways to draft a life estate deed. Your deed is a bit verbose, but repeatedly describes your intent. There is no doubt your children will receive your property outside of probate, upon your death.
Life estate deeds are helpful planning tools to avoid probate or nursing home liens, but are not perfect. Here are some potential negatives:
- Your children’s creditors can reach your home, as an available asset for lien purposes. If either has a divorce, the spouse may claim an interest in the home.
- To sell or mortgage your property, your children must provide consent.
- If sold, your children may demand a share of the proceeds.
- Even if your kids don’t demand their share, the IRS will attribute a percentage to them. This will have negative capital gains tax consequences, as the kids don’t reside at your home.
Attorney James Haroutunian practices real estate, estate planning and business law in Billerica at 790 Boston Rd and can be reached with questions at 978-671-0711 or via email: firstname.lastname@example.org. You can also find his blogs at both www.prioritylaw.com and www.hlawoffice.com.