Legal Protection Against Selling a House of a Terminally Ill Person
A terminally ill man who wishes to leave his house to his children with a stipulation that his de facto partner can live in the house until she moves or passes away must take certain legal steps to ensure his wishes are respected. Without proper legal measures, his adult children might inadvertently or intentionally sell the house, which could be a violation of the deceased's wishes.
Using a Life Estate to Secure the Property
To legally prevent the adult children from selling the house, the terminally ill man should consider establishing a life estate. This legal arrangement allows his partner to reside in the property until she either moves or passes away. After the life tenant (his partner) dies, the house would transfer to the remaindermen (his adult children).
Overview of Life Estates
A life estate is a type of real estate ownership where the property is granted to a person for their lifetime, and upon the termination of that time (typically death), the property reverts to the grantor or someone designated by the grantor. This legal structure ensures that the life tenant can live in the house for the duration of their life and that the remaindermen (in this case, the adult children) cannot sell or dispose of the property until the life tenant expires.
How a Life Estate Works
In a life estate, the property owner (grantor) transfers legal ownership to another person, the life tenant. Typically, the deed will explicitly state that the occupant has the right to use the property for the duration of their life. Upon the death of the life tenant, the property then reverts to a remainderman—the person designated to receive the property after the life tenant’s death.
Benefits of a Life Estate
One of the primary benefits of a life estate is the avoidance of probate. When the life tenant dies, their name is simply stricken off the title, and the property is transferred to the remaindermen. This speeds up the process and avoids potential legal and financial complications.
Potential Landmine in Legal Documentation
It is crucial for all parties involved to understand the nuanced nature of a life estate. The life tenant (the partner in this case) has ownership interests in the property throughout their lifetime, while the remaindermen (the adult children) also have ownership interests while the life tenant is alive. Both parties have different rights of possession, and the life tenant is legally responsible for maintaining the property.
Legal Steps to Take
To successfully implement a life estate, the terminally ill man must consult with a lawyer experienced in land title matters. A lawyer can help draft the necessary documents and ensure that the arrangement is legally sound. The man can create a deed that transfers the property to his partner for her lifetime. Following her death, the deed can specify that the property reverts to the remaindermen—in this case, his adult children.
Historical Context and Common Law
The concept of life estates has a long history in common law, and historically, parents often used this arrangement to protect property. Many lawyers with experience in land title matters have handled similar cases in the past, making them the ideal choice to help set up this legal structure.
Conclusion
A terminally ill man who wants to leave his house to his children while ensuring his de facto partner can live in it until her death or until she moves needs to take proactive legal steps. Establishing a life estate is one way to secure the property and prevent the adult children from selling it without the partner’s right intact. Consulting with a knowledgeable lawyer can help ensure that the man's wishes are legally protected and meticulously implemented.