Life Estate Deed

Q: My mother passed away a year ago. My brother has just announced he has a life estate deed leaving our mother's house entirely to him, but it was not recorded prior to my mother's death.
 

My mother's will divided all her real and personal property equally between my brother and me. Does he have a valid life estate on my mother’s home?

A: Your question raises some complicated issues. In general, for a deed to be valid, the deed must have been drafted and signed and delivered while the owner of the property was alive.

Some states may differ in how they treat your situation. But the key for your situation is whether your mother actually intended to give a life estate to your brother and whether she gave him this life estate while she was alive.

If she signed the document and put it away, she might have been saving the document without having the real intent to give him the life estate. It’s odd that your brother would announce the life estate long after your mother died and not while she was alive.

You have already realized that the deed your brother claims conflicts with the terms of the will. The only way you will find out for sure whether the life estate is valid is to get more information.

Some important information to know would be when your mother signed the deed, her mental capacity at that time, whether she was coerced into signing the deed, whether she gave the deed to your brother, whether your brother knew that he had the life estate while your mother was alive and determine why your brother delayed recording the deed once your mom died.

If you have this information, you can discuss these issues with a real estate attorney your state to determine what the laws of your state provide. The deed could be invalid and the will could prevail.

If the deed is valid, you still own an interest in the home. When your brother dies, you or your heirs will get the ½ interest in the house that your mom left you. The only issue now is whether your brother gets the life estate.

If you and he have decided to sell the house, the life estate would not be relevant and upon the sale of the house, he and you would share the proceeds of the sale.

Samuel J. Tamkin is a Chicago-based real estate attorney. Ilyce R. Glink’s latest book is 50 Simple Steps You Can Take To Sell Your Home Faster and For More Money In Any Market. If you have questions for them, write: Real Estate Matters Syndicate, PO Box 366, Glencoe, IL 60022 or contact them through Ilyce’s website www.thinkglink.com