UNTIL DEATH DO US PART: LIFE ESTATES

Introduction

For centuries, the immortal Owner has doled out life estates in Greenacre to A, B, and C. Originally, property owners granted life estates in exchange for rent because a term of years lacked equal protection under the law. In recent usage, life estates have been used to pass property within a family.

A life estate creates an interest in real property that continues until the death of an individual. A remainder interest accompanies life estates, ensuring that on some future date another individual (the remainderman) will receive full title to the property. In most cases, the life tenant's life determines the estate's duration but a life estate can also be measured by the life of someone else. In an estate pur autre vie the life span of an individual separate from the life tenant controls the estate's term. Estates pur autre vie are created in two ways: (1) the grantor uses the life of a third party to measure the life estate; or (2) the original grantee conveys his or her interest to a third party making the third party's interest measured by the original grantee's life.

A life estate can be created by gift, sale, or will. The grantor's intention to create a life estate must be expressed by equivalent and appropriate language but use of the term "life estate" is not required. Long v Horton, 133 NE2d 568, 572 (Ind App 1956). Courts will create a life estate by implication if the language is unclear or ambiguous. Pointer v Lucas, 169 NE2d 196, 202 (Ind Ct App 1960).

Waste Not, Want Not: Responsibilities

Upon the life tenant's demise, the life estate terminates and the remainderman takes possession. The life tenant's responsibilities to the remainderman during the duration of the life estate serve to preserve the value of the property.

A life tenant owes the remainderman a duty to prevent waste to the property. Sexton v Marine Bank of Springfield, 247 Ill App 3d 763, 767, 617 NE2d 869, 872, 187 Ill Dec 412, 415 (4th D 1993). Waste occurs when the life tenant destroys, misuses, alters, or neglects the property prejudicing the remainderman's right to possession or diminishing the value of the land. Hausmann v Hausmann, 231 Ill App 3d 361, 367, 596 NE2d 216, 219, 172 Ill Dec 937, 940 (5th D 1992). Waste is not limited to physical damage but can extend to the title; the life tenant's failure to pay real estate taxes can constitute waste. Id.

A life tenant must make ordinary repairs but not extraordinary ones. Honeyman v Heins, 131 Ill App 2d 981, 982, 268 NE2d 907 (4th D 1971). In Honeyman, fire destroyed a residence and the remainderman sought the insurance money collected by the life tenant, claiming the tenant failed to make ordinary repairs by not restoring the residence to its original condition. The court found the scope of ordinary repairs did not include replacing the building. Barring an agreement to the contrary, the life tenant is not required to carry insurance for the remainderman's benefit. Honeyman v Heins, 131 Ill App 2d 981, 982, 268 NE2d 907 (4th D 1971). While the life tenant can avoid insurance premiums, the life tenant must pay the mortgage interest. Banaszak v Banaszak, 133 Wis2d 358, 361, 395 NW2d 614, 616 (Wis 1986). The life tenant must also pay taxes assessed during the tenancy. Prettyman v Walston, 34 Ill 175 (Ill 1864). If the life tenant neglects to pay, the life tenant cannot purchase the land, either personally or through an agent, at any subsequent tax sale. Id.

Reap What You Sow: Life Tenant's Rights

Aside from obligations to the remainderman, a life tenant can use the property in any manner the life tenant sees fit. The life tenant keeps any income or profit from the estate during the term of the tenancy. A life estate entitles the life tenant to all rents received, the right to plant and harvest crops, and to cut timber.

The life tenant can farm the land or lease it out for rent. The "right of emblements" encourages farming by allowing the life tenant's representatives to harvest annual crops planted before the life tenant's death. Roberts v McAllister, 226 Ill App 356 (2nd D 1922). The rents due the life tenant upon death are collectible by his or her estate. Frame's Estate v Frame, 96 NE 35, 36 (Ind Ct App 1911).

A life estate entitles the tenant to cut timber for repairs and firewood but does not permit chopping down trees for resale. Chapman v Epperson, 101 Ill App 161 (3rd D 1901). In Wisconsin, a life tenant may cut down and sell wood to make the land fit for cultivation or pasture, so long as it does not diminish the property's value for the remainderman. Wilkinson v Wilkinson, 18 NW 527, 59 Wis 557 (Wis 1884).

These rights are not unqualified. A life tenant's rights can become waste if misused. The life tenant may use the property for his or her own benefit, keeping all proceeds from such use, but at the same time must "exercise reasonable precautions" to leave the property intact for the remainderman. Kepert v Kepert, 134 NE 297, 300 (Ind 1922).

Lessee Beware: Renting from a Life Tenant

A life tenant can sell or lease the property but not beyond the life estate term. Collins v Held, 369 NE2d 641, 648 (Ind 1977). Since the estate exists until the death of some person, usually the life tenant, leasing from someone holding a life estate can be risky. If the life tenant leases property and then dies, the lessee will owe the remainderman rent for any period the lessee remains in possession without the remainderman's consent. Roberts v McAllister, 226 Ill App 356 (2nd D 1922). In Wisconsin, a lessee will be liable to the remainderman for the property's reasonable rental value for occupancy beyond the life estate's termination. Wis Stat § 704.40. Reasonable rental value can exceed the stipulated amount, with the rent amount in the lease setting a minimum. Id. However, just as the life tenant's representatives have the right to harvest a crop sown by a deceased life tenant, the lessee may gather crops planted without paying rent or damages to the remainderman. When a lessor rents farmland on a year-to-year basis and the lessor holding a life estate dies, the lease will not terminate until the end of the current lease year. 735 ILCS 5/9-206.1.

Breaking Up Is Hard to Do: Partitioning

The rights of life tenants to divide up the property are limited. An action for partition of real estate requires either actual possession or the right to immediate possession. Bronson v Bronson, 448 NE2d 1231, 1233 (Ind Ct App 1983). A life tenant is entitled to partition of the life estate only and not the remainderman's interest. Plano Mfg Co v Kindschi, 111 NW 680, 681, 131 Wis 590, 591 (1907). The remainder of a life estate may not be partitioned when the remainder is contingent in quantity until the death of the life tenant due to possible births. Westerdale v Grossman, 312 Ill App3d 884, 887, 728 NE2d 67, 70, 245 Ill Dec 336, 339 (3rd D 2000). However, the life tenant may partition a life estate when the co-tenants hold in fee, but only the life tenant's interests are partitioned. Id.

Call the Mortician: Terminating the Life Estate

The life estate lasts as long as the life of the grantee. When the life tenant or the person whose life measures the life estate dies, the property passes to the remainderman. In Wisconsin, the remainderman has several options to officially terminate the life estate. The remainderman can petition the court to issue a certificate setting forth the life tenant's death and terminating the estate. Wis Stat § 867.04. Alternatively, the remainderman can provide a certified copy of the death certificate to the Register of Deeds, who then verifies that the remainderman appeared. Wis Stat § 867.045. In Illinois, possession vests with the remainderman upon the death of the life tenant without any action on the part of an executor or administrator. Corney v Corney, 257 Ill App 13 (2nd D 1930). Indiana parallels Illinois; the remainderman need not do anything once the life tenant dies. Overpeck v Dowd, 364 NE2d 1043, 1050 (Ind App 1977).

Conclusion

The infamous Owner creates a life estate by granting Greenacre to A for A's natural life and to B at A's death. A, as the life tenant, can use the property until death but owes B a duty to maintain the property's value by not misusing the land. On the fateful day when A departs for even greener acres, A's estate ends and B takes possession.

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