Can Our Father’s Widow Sell Her Life Estate in the Family Home?

 In Real Estate, Second Marriages

Question:

My father remarried after my mother died. He was in his sixties. He owned our family home and had no mortgage or liens, etc. He never put his second wife on the deed as he wanted to make sure we inherited the home and not her heirs. He was advised to create a life estate for his second wife in his will should she outlive him with remainder to me and my siblings in fee simple. Weirdly, after he died and we read his will he created a life estate for his wife with us as remainders using the correct language to create a life estate in Alabama. However, a few paragraphs down he then said if she no longer wanted to live in the house she could sell the property at her discretion with complete title with proceeds to be divided per federal guidelines as to the value of her interest and the remainder interest. Does this mean she was given something other than a life estate where remainderman must agree to a sale in order to convey complete title?

Photo by Tierra Mallorca on Unsplash

Response:

Technically, it sounds like your father’s widow has something more like an interest in trust rather than a life estate. A life estate is an actual ownership interest in real estate. It is shared ownership between the so-called “life tenant” — your father’s widow in your case — and the remaindermen — you and your siblings. No one can sell the property on their own; all have to agree. In your case, however, your father seems to have given his widow a further power of sale. Perhaps that could be written into a deed. It definitely could be a power within a trust. Whether a property in a life estate is sold by agreement among the parties or by a single party with the power, the proceeds are generally distributed as your father’s will describes. The value of the life tenant’s interest declines over time along with her life expectancy as she gets older.

What gets complicated in your case is that it could be difficult to put your father’s wishes into effect. I have not seen a life estate deed with the power to sell vested in the life tenant, though that’s probably what the executor for your father’s estate should have created is possible. I think the better approach would have been for your father to have created a more formal trust with the provisions in it that he desired.

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