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I have more estate issue: right to occupancy vs. life estate

and what it means if...
I have more estate issue: right to occupancy vs. life estate and what it means if a tenant is renting outside the primary residence. The deed is set up 50% trustee (me) and 50% stepmom's trust. Trust is silent on rent outside of primary property.
A tenant with his own trailer on the property who pays rent each month for use of the land. I think the rent should be split 50/50 because the deeds determine this. Note: There is no life estate deed, just language that says she can stay in the house subject to conditions. Your thoughts?
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Answered in 4 minutes by:
11/5/2017
jb156200
jb156200, Attorney
Category: Estate Law
Satisfied Customers: 490
Experience: I am a Probate Attorney practicing in Tampa, Florida.
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Hello again. Ok, she has the right to occupy for her lifetime. That is separate from a different individual renting land to park their trailer. The land itself is owned 50/50; therefore you may have a claim to 50% of the rent. Even if a court determines the trust is owed 50% of the rent; the trust might state that the surviving spouse is entitled to all income of the trust. The rent would be deemed income of the trust and therefore the spouse still ends up with 100% of the rent.

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Customer reply replied 1 month ago
The trust is silent about the separate from a different individual renting land to park their trailer. As trustee, I started informing the tenant to issue two separate checks for the rent and my stepmom is livid. Even though she is mad, can I continue to proceed based on how the deeds of the property are titled. I do not want to have to waste time and money petitioning the court on this issue. We are only talking about splitting $466 per month.

You may continue requesting half of the rent, but in the end you will probably have to write a check for the same amount to the surviving spouse. Do you know whether the spouse is entitled to the income of the trust during their lifetime?

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Customer reply replied 1 month ago
The trust does not say that the spouse is entitled to the income of the trust during her lifetime. For the record, I think she is granted a right to occupy if that matters to the issue. The trust does say that she is responsible to pay for the homeowner's insurance, property taxes, and basic maintenance as long as she lives there. I think I should be able to proceed without court intervention. Your thoughts?

Ok good. As long as the trust does not say she is entitled to the income then you have a case to move forward without court intervention. Unfortunately she may bring a claim in court stating that since she is required to pay the expenses of the property she should be entitled to the rental income to offset the expenses. In that situation, let her go hire an attorney and make you go to court.

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Customer reply replied 1 month ago
she is the type to that: "she may bring a claim in court stating that since she is required to pay the expenses of the property she should be entitled to the rental income to offset the expenses." If she does do that, should I be concerned? Should I have an estate attorney sent her a courtesy email explaining the situation?

No. Either you will go to court to get a court order allowing you to collect 50% of the rent, or she is going to go to court claiming she is entitled to 100% of the rent. Either way you end up in court and both parties are making the same arguments regardless of who filed the action. At that point it will be up to the judge. You will be able to save on legal fees if you force her to file instead of you initiating the proceedings.

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Customer reply replied 1 month ago
Got it. Thank you. The poor tenant is caught in the middle of this. Last month, my stepmom made a phone call and requested the entire amount be sent to her (which happened) even after I gave explicit instructions about 50/50 distribution based on the advise from a probate attorney I know. I am not sure how to calm these waters.Clarification: Whether the trust grants her a life estate or right to occupancy is essentially irrelevant because we are talking about a different individual renting land to park their trailer and the trust does not say anything about her receiving rental income. Is this it in a nutshell if I have to explain it to her or her attorney?

Correct. A third party has nothing to do with a life estate or occupancy.

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Customer reply replied 1 month ago
if a judge had to rule on this issue, she would lose based on the facts I presented to you?

Exactly. You are going to argue that the property is owned 50% therefore the trust is entitled to 50% of the rent. The surviving spouse is going to argue that she is responsible for 100% of the expenses of the property and therefore she is entitled to 100% of the rent to off set the cost. Then it would be up to the judge to decide.

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Customer reply replied 1 month ago
if and when she threatens to go to court, I should say "go ahead."

Yup. The only alternative is for you two to come to an agreement, although it sounds like she may not want to do that.

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Customer reply replied 1 month ago
No. She believes that the "life estate" (which is really a right to occupy) entitles her to all the rent and because she is paying all the expenses. I kind of get that reasoning, but I do not think applies to a third party as you mentioned. I just wanted to reassurance that my logic is correct. Would a judge rule based on the deed structure primarily or the fact it is third party is renting? Just curious as to the legal basis

A judge is going to balance being fair to the surviving spouse, but to also not jeopardize the beneficiaries of the trust. It seems pretty clear that it is a 50/50 split, but I have seen judges order the rent to be used to pay expenses. This is not guaranteed. Unfortunately it depends on the judge assigned to the case and the mood they might be in that day.

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Customer reply replied 1 month ago
Good points. If you were advising me as a trustee, would it hurt to have my attorney send her attorney a letter to attempt to let them know why I will requesting the tenant to split the checks going forward? I do not think this will resolve the issue per se, but do think this is a good idea just to make the effort?

You may. I would recommend sending it certified so that if you do end up in court you will have proof that you served her notice of the splitting of the rent.

jb156200
jb156200, Attorney
Category: Estate Law
Satisfied Customers: 490
Experience: I am a Probate Attorney practicing in Tampa, Florida.
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Customer reply replied 1 month ago
Will do. You have been very helpful as always. Keep up the good work. And thanks again.

Thank you very much! Good luck. Please let me know if I may help in the future.

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