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Reserving a Life Estate

The parents can deed a remainder interest to the child and reserve to themselves a life estate. This is a method of assuring lifetime income for the parents. The child actually owns an interest in the land, but the right to use the land belongs to the parents during their lifetime. The parents, if they so desire, could give a lifetime lease to the child. The property is still subject to estate taxes when the parents have retained a life estate and have deeded a remainder interest to a child but the property is not subject to regular probate.
Advantages
• The child is assured of having the farm and the parents are entitled to income during their lifetime.
• If the parents have no other property, no regular probate proceeding will be necessary to determine fact of death and terminate the life estate. In this procedure, an estate tax return is prepared and a certificate of tax clearance is obtained from the tax commission. The cost of this shorter probate procedure is much less than the cost of a regular probate proceeding.
Disadvantages
• Conflicts regarding management of the property may arise between the life tenants and remaindermen.
• The child could sell his remainder interest to an uncooperative person. The parents could prevent this by inserting a clause in the deed that states, “if the child transferred his rights during the lifetime of either parent, the remainder interest would revert to the parents.”
• It is hard to value what the child is getting.
• The laws are unclear regarding how mineral interests are handled in a life estate.
• Once the life estate is created, parents cannot change their mind about how the property will be distributed at their death. Thus flexibility to handle changing circumstances is cancelled.
• Creditors of the child may be able to reach the child’s remainder interest and if the child has financial difficulties, his inheritance may be lost.

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