How to use a life estate deed form to transfer property to one party automatically upon another party’s death without going through probate.
Attorney (J.D., LL.M.)
Last updated Jul 17, 2023
Table of Contents
A life estate deed is a special deed form that allows a property owner to use the property during life and transfer the property automatically at death. Life estate deeds are designed to transfer the property at death without losing the ability to use the property during life.
As discussed in How to Avoid Probate of Real Estate, a life estate deed is a popular estate planning tool. Life estate deeds are the oldest form of deed for avoiding probate at death and are well-established in most states. But, as discussed below, life estate deeds forfeit control. In states that recognize lady bird deeds or TOD deeds, the probate avoidance benefit of a life estate deed can be achieved without the loss of control. Life estate deeds are most often used in states that do not offer lady bird deeds or TOD deeds.
Life estate deeds work by dividing the property into two types of interests. One interest is measured based on the owner’s lifetime and is called a life estate. The interest that passes at the owner’s death is called a remainder or remainder interest. The life estate and remainder interest are then transferred to different owners. There are three categories of owners:
As with other deeds, these terms refer to different types of owners, not to specific individuals. The same party may serve in multiple roles. The current owner (grantor) is usually also the life tenant. Similarly, multiple individuals may serve in the same role. For example, there may be two grantors, three joint life tenants, and one remainder beneficiary.
Example: Peter creates a life estate deed transferring his property to himself, as life tenant, with the remainder to Paul and Mary. The effect of this deed is to retain a life estate for Peter as life tenant. At Peter’s death, the remainder interest will automatically transfer to Paul and Mary.
Attorney Practice Note: As discussed below, there are two types of life estate deeds: Traditional life estate deeds and lady bird deeds, also called enhanced life estate deeds. This article focuses primarily on traditional life estate deeds. See our discussion of lady bird deeds for more information about enhanced life estate (lady bird) deeds.
The creation of a life estate deed can be tricky. It is important to include the right language to create the life tenant relationship. If multiple parties will serve in the same role—for example, if there are multiple life tenants or multiple remainder beneficiaries—it is important to also include language that defines the relationships within that role, including the form of co-ownership for multiple remainder beneficiaries.
The deed forms prepared by ouronline deed preparation service were designed by licensed attorneys to include the language needed to create a valid life estate deed. It uses a simple interview to collect the information needed, then creates a customized deed that matches the choices you made in the interview. Each deed is designed to satisfy state-specific requirements, including recording requirements.
A life estate deed is not the only way to transfer property at death. Property will automatically transfer to the surviving owner at death if it is titled with right of survivorship (as tenancy by the entirety, joint tenants with rights of survivorship, or community property with rights of survivorship). With these forms of co-ownership, the owners have simultaneous possessory rights. Each owner can occupy or use the property at the same time.
A life estate deed is also a form of co-ownership. Both the life tenant and the remainder beneficiary have real interests in the property. But unlike other forms of co-ownership, they do not have property rights at the same time as each other. Instead, their interests are stacked in time. Only the life tenant has a right to current possession of the property. The remainder beneficiary’s interest does not begin until the life tenant’s death.
Life estate deeds avoid probate at death, but at the cost of sacrificing control during life. The transfer of an interest to the remainder beneficiaries gives the remainder beneficiaries present rights to the property. Even though the remainder beneficiaries do not have possessory rights to use the property while the life tenant is still alive, the life tenant cannot convey or mortgage the property without the consent of the remainder beneficiaries. This has been known to cause issues with loans. The life tenant also owes duties to preserve the property for the benefit of the remainder beneficiaries and must take their interests into account in making decisions.
Many people would prefer to avoid probate at death without sacrificing control during life. In the past few decades, an increasing number of states permit the use of other deed forms that avoid probate without loss of control. The two predominate deed forms are:
Like a traditional life estate deed, both lady bird deeds and TOD deeds avoid probate on the death of the life tenant. But unlike a traditional life estate deed, the original owner reserves the right to freely deal with the property without involving the beneficiary. The owner may change the beneficiary or undo the deed, all without the beneficiary’s consent or involvement. This flexibility often makes lady bird deeds and TOD deeds popular alternatives to life estate deeds for avoiding probate.
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