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Brent Blanchard
Brent Blanchard, Lawyer
Category: Real Estate Law
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Experience:  Thirteen years of experience in real estate matters, HOA disputes and drafting HOA documents
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Are there any provisions in NY law that nullify a life estate

Resolved Question:

Are there any provisions in NY law that nullify a life estate for an individual that is residing in a memory care facility and is unable to live independently after a period of time has gone by?
Submitted: 1 year ago.
Category: Real Estate Law
Expert:  Brent Blanchard replied 1 year ago.
Thank you for your question.

I don't see why there would be. If a person is no longer living on the life estate property, their rights to exclusive possession of the land would let them be a landlord to anyone willing to rent from him or her.

If that person is also not competent to manage his or her own affairs, then that person's legal guardian or conservator could do that and collect the income for the benefit of the life estate owner.

A life estate is a hard legal interest in real property, with no requirement of residency like a homestead declaration. As such, the owner of any life estate can sell that right of possession to anyone in the world--who would have to depart on the original life estate owner's death. Usually what we see is the life estate being sold to the other person(s) with the remainder interest, so they can have full rights to the property right away.

Thank you.

BAB.
Brent Blanchard, Lawyer
Category: Real Estate Law
Satisfied Customers: 1916
Experience: Thirteen years of experience in real estate matters, HOA disputes and drafting HOA documents
Brent Blanchard and 6 other Real Estate Law Specialists are ready to help you
Customer: replied 1 year ago.

This is a Warranty Deed reserving a life estate to the grantor and his wife. The grantor is deceased and the wife is no longer using the premise. Is there a specific time frame in NY that the individual has not lived on the property before it can be sold. If so, how long and do I have to file documents for a release of lifetime use.

 

Customer: replied 1 year ago.
Relist: Other.
Waiting for a follow up question to the original response.
Expert:  Brent Blanchard replied 1 year ago.
Sorry you were waiting, I was taking a half-hour on an involved bankruptcy question and just now sent that one off.

No.

Ownership is ownership. A life tenancy reserved is a right to possess/use the land until death. There is no legal requirement for the life tenant to actually live on the property. In fact, in days of yore, life tenancies were sometimes reserved in agricultural land that no one was living on. Sort of like an income annuity, but with the weather and market risks of farming, rather than the market and business integrity risks (minimal if all regulations are followed) of an insurance company's promise to pay with an annuity.

Now, the NY legislature expanded the definition of land ownership for Medicaid recovery to include life estates (which tend to have small cash values--the owner could die any time), but the next year's budget when passed repealed that. So make sure that anyone's brother-in-law who is trying to practice law when discussing this with you has *current* information.

If the life estate was retained in a transfer less than five years ago, then Medicaid can still try to recover against the entire property.

But there is no way in NY law to force the sale of a person's life estate without their permission, without them losing a lawsuit where someone else either gets title (as a specific remedy, but you describe no fraud or other hanky-panky that would justify that), or that person trying to satisfy a monetary judgment by executing on the life estate and having a sheriff's sale of it. Almost no one would want to buy a life estate measured on someone else's life.

This NY attorney's article on the subject is a pretty good explanation of what is involved with a life estate: http://www.nyestatelitigationblog.com/tags/life-estate/. It's the first entry in the column.

Thank you.

BAB.

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