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Roger
Roger, Lawyer
Category: Real Estate Law
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Experience:  BV Rated by Martindale-Hubbell; SuperLawyer rating by West
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My Mother has our farm in a living life estate. There is 3

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My Mother has our farm in a living life estate. There is 3 of us children and the land has been deeded out in specific portions to each of us 3 but she still retains the living life estate. My brother is to receive the portion with the building site on it upon her death. He has sold some building assets off the place and my Mother is still alive. Who is entitled to receive the money for those buildings? Thanks!
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Roger replied 1 year ago.
Hi - my name is XXXXX XXXXX X'X a Real Estate litigation attorney. Thanks for your question.

As you may know, a "Life Estate" is not an ownership interest in the property, but instead, it is an exclusive right to use and occupy property for the remainder of one's life. The life tenant would also have the exclusive right to rent the property.

Thus, any rental income from the property would belong to your mother. However, your brother cannot sell any portion of the property without your mother's consent due to her interest in and right to exclusive use AND your mother could not sell any property or assets without your brother's permission. So if your brother could face legal liability for selling anything off of the property without your mother's consent.



Customer: replied 1 year ago.

So if there is grain bins on the place my Mother could decide who to rent them to and how much to charge and she would be entitled the money? Also, Mom brother lives in the house. Should he be paying rent and my Mother receive the income?

Expert:  Roger replied 1 year ago.
1. Yes, your mother would have the right to make that decision.

2. There's no law that requires your mother to demand/require rent. She could demand rent, but doesn't have to.
Customer: replied 1 year ago.

By the way my name is XXXXX XXXXX a sale is made of items off the site who is entitled to receive that money? Also I have rented the farm for yrs. and have made many of the improvements to the bldg. site. A couple of yrs. ago we decided to separate out our portions specifically. I was forced to choose between farm land or the bdlg. site. I chose farm land. I had put up the grain bins and a machine shed with my own money. My brother is claiming that I took advantage of paying storage on my own bins and shed and not giving it to my Mother. I put up 4 large bins and a machine shed with my own money over the yrs. There is 3 small bins a barn and another machine shed on the site. The original rental deal although verbal was that in renting the whole farm I was allowed to use all bldgs. and bins. My brother knows this as we used to farm together. I say considering the original rental agreement and also that I put up the bins myself that I was not taking advantage and should not of been paying rent on them. Who's right?

Expert:  Roger replied 1 year ago.
Thanks for the information Charles.

Your mother - as a life tenant - has the right to use and occupy the property exclusive to anyone else. But, if some piece of personal property is sold - like a piece of equipment, grain in these bins, or some other personal item - the life teXXXXX XXXXXkely has no affect on that. Whoever owns the item would have the right to sell and receive payment.

But, the house or real estate could not be sold without the consent of both your mother and brother.

As for you paying rent, there's no law that says if you construct sheds and bins, you shouldn't have to pay rent. Instead, that would be a matter of contract for you and your mother to settle on during her lifetime and then you'd have to deal with your brother on the issue after she were to pass away.

So, there's nothing illegal about charging you rent for the sheds and bins you built on the property.
Customer: replied 1 year ago.

Thanks Kirk!.........Just a couple last things, I think. Just to clarify, I'm trying to determine if my brother and Mother both agreed to sell the grain bins then who is entitled to the money? Also, I have a sister who has a share and she is set to receive just farm land. Can she sell her portion if my Mother agrees? Do you know at what point in time her tax basis would be determined. Would it be when everything was willed to us 3 kids when my Dad passed away in 1995 or when we separated each ones portion out a couple of yrs. ago or would it be at the point of sale? Thanks!

Expert:  Roger replied 1 year ago.

If your mother and brother both agree to sell a grain bin, then your mother would get a portion of the money for her life estate interest and your brother would get the rest of the money.

 

The life tenant can only sell what she owns, and that would be the right to use and occupy the property - - including the grain bins. SO, your mother would be entitled to the value to her for using those bins, which can be a difficult amount to ascertain. USUALLY, the owner and life tenant just come to a lump sum amount that they can agree to. But, the owner gets the majority of the money.

 

Yes, your sister can sell her interest in the land IF her mother agrees to it. The same money-splitting would apply there as well.

 

As for your tax basis, the general rule is that the recipient's basis for inherited property is stepped up (or stepped down) from the decedent's cost to the asset's fair market value at the decedent's date of death.

Customer: replied 1 year ago.

So in my sister's case the basis could be determined at the at the time of my Dad's death or if she waited to sell when my Mom passes at that time,right? Another thing regarding the grain bins and shed. If I had put them up with my own money do I have any claim on them now? Thanks!

Expert:  Roger replied 1 year ago.
No, it would be the value of the property at your dad's death - - when the property was inherited. Your mom only owns a life estate, which is not an ownership interest that can be inherited because it ends with your mom's death.

No, it's not likely that you have a LEGAL claim to the bins because you voluntarily installed them on someone else's property. This would be a VOLUNTARY act and you would have no right to recover the money LEGALLY - - but from a moral standpoint, your family could certainly let you recoup your money if the property/bins are sold.
Customer: replied 1 year ago.

Thanks Kirk! Very helpful! One last thing and that's it. So I assume I couldn't claim the bins and move them to my place and use them? Thanks!........Charles Have a good day!

Expert:  Roger replied 1 year ago.
Unfortunately, this would not be LEGALLY possible.
Roger, Lawyer
Category: Real Estate Law
Satisfied Customers: 25995
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