Understanding Life Estates: A Comprehensive Guide for Visa Employees

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What Is a Life Estate?

Many of our clients from Visa have been curious to know more about Life Estates. A life estate, sometimes called a life interest, is a form of property ownership. It is an interest in property for the duration of the holder's, sometimes called a life tenant's, life. The holder of a life estate does not enjoy a complete ownership interest in the property as he or she would under joint tenancy, tenancy by the entirety, and tenancy in common. Instead, a life estate creates a split-interest made up of the life estate and the remainder interest or whatever is left when the life estate ends.

A life estate is an interest that gives the holder the right to possess, use, and enjoy the property or income from the property for life. When the holder dies, the remainder interest automatically reverts back to the original owner or passes to the next beneficiary (called the remainder person). Although both the life estate and the remainder interest can be sold, they are not usually marketable unless they are sold together. An original owner of property can keep only a life estate and sell his or her remainder interest.

Alternatively, he or she can transfer a life estate and either keep the remainder interest or name another beneficiary to receive it when the life estate ends. Because a life estate is only a temporary interest that will pass to another party, the holder is legally obligated to take care of the property. The holder may have to account for and pay for any loss the property suffers during the life estate period. Although other property can be held as a life estate, it is generally used in relation to real estate.

Caution:  We'd like our Visa clients to be aware that   a gift with a retained life estate will not help minimize estate taxes, but it may help minimize your exposure to creditors.

Example(s):  Joey owns several shares of stock in an electric utility company, which he bought in the late 1970s for $16 a share.  In the mid-1990s, the shares were trading at $43. In 1995, Joey gifted those shares to his daughter Delores with the agreement that he would continue to receive the monthly dividend that the shares produced for the rest of his life. Joey now owns a life estate in the income produced by the shares, while Delores has the remainder interest.

What Are The Advantages of a Life Estate?

Provides for Your Spouse during His or Her Life While Ensuring That Your Children Ultimately Receive the Property

One major advantage of a life estate that our Visa clients should keep in mind is that a life estate allows you to provide for your spouse and give your property to your children at the same time. This is especially advantageous if you want to prevent your spouse from wasting the property or disinheriting your children after you die.

Example(s):  Joey specifies in his will that his second wife, Ethel, will have the use of his home and vacation home during her lifetime, but that upon either her death or remarriage, the houses will go to the children from his first marriage, Denise and  Delores.

Provides You With Income or a Place to Live During Your Life While Transferring the Property to Your Children

Another benefit that our Visa clients should be aware of is that a life estate allows you to keep your house or income but also transfer your property to your children now. In this situation, helping your children may be your primary financial concern.

Example(s):  Simon is getting older and wants to scale back his lifestyle. His daughter Amelia has just graduated from college and has landed her first job as a junior account executive for an advertising agency. To boost Amelia's net worth, Simon deeds his personal residence to her but retains the right to live in the home for the rest of his life.

Allows You to Provide Someone with an Income or a Place to Live Yet Still Retain Control Over Who Ultimately Receives the Property

You can give the income from the income-producing property to any person for that person's life and then leave the asset to someone else when the holder of the life estate dies.

Example(s):  Alan specifies in his will that his son Mark will receive income from some investments for life, but that upon Mark's death, the investments will go to Alan's grandchildren in equal shares to do with as they think best.

Allows You to Provide For More Than One Person

The next advantage we'd like to point out to our Visa clients is that you can provide for more than one person by leaving a life estate to one and the remainder interest to another.

May Be Created Inexpensively

A life estate created by gift or sale is relatively inexpensive to implement. Simply record the title or deed as a life estate interest. However, we'd like our Visa clients to be aware that a life estate created by will or trust may be more expensive because of the additional legal and administrative costs.

May Help Holder Qualify for Medicaid

A transfer subject to a life estate may help you qualify for Medicaid because the remainder interest will not be a countable asset once any period of ineligibility has elapsed. However, the life estate itself is counted as an available asset. Also, because you retain an interest in the asset, any ineligibility period imposed on the transfer will be shorter than if you had transferred the asset entirely.

Caution:  We'd like our Visa clients to be aware that the purchase of a life estate in another's home is treated differently than transferring property and retaining an interest.  Generally, for purchases made on or after February 8, 2006, the transfer of money for the life estate will be countable for Medicaid eligibility purposes unless you have lived in the home for at least one year after the purchase. Be advised that the February 8,  2006 effective date is mandated under federal law, and may be slightly different under your state's law.

Avoids Probate

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Probate is the court-supervised process of administering a will. It can be costly and time-consuming. At the death of the holder, the property automatically passes to the remainder person and avoids probate.

Holder Retains Complete Possession for Life

Unlike joint ownership arrangements, a life estate holder retains the complete right to the possession of the property, including the right to receive rent. The holder also remains entitled to any abatements, as well as the right to keep a homeowner's insurance policy on the property.

What Are The Tradeoffs?

Gifts of Remainder Interests Are Subject to Gift Tax

Gifting property to someone else and retaining a life interest will result in a taxable gift upon which a gift tax may be due. The gift tax will be based on an actuarial value of the remainder interest at the time of the gift.

Tip:  Because of certain exclusions, deductions, and credits allowed, you may not actually have to pay any gift tax.

Property May Remain In Holder's Gross Estate, Subject to Estate Taxes

The IRS does not allow you to merely transfer title to the property in order to escape estate taxes. Therefore, the IRS considers a life estate to be full ownership for estate tax purposes. Generally, the full value of the property will be included in your gross taxable estate when you die, unless you have either gifted the life estate at least three years before your death or have sold the property in a bona fide sale.

Transfers of a Life Estate to a Spouse May Not Qualify For the Unlimited Marital Deduction

The unlimited marital deduction is not available to you or your estate if your spouse receives a life estate instead of a full ownership interest in the property because he or she does not have the right to dispose of the property.

Tip:  You or your personal representative can restore the unlimited marital deduction by electing  QTIP  treatment for the property.

Holder Does Not Have Absolute Control Over The Property

We'd like our Visa employees to be aware that depending on state law or how the agreement creating the life estate is set up, you may have to get consent from the ultimate recipient of the property to invest it or make any improvements.

Property May Have Reduced Resale Value

Because the property is subject to a life estate, the remainderperson may not be able to sell it during the holder's life. If the remainderperson can find a buyer for the property, the price he or she receives may be less than the fair market value of the property.

Sale Is Subject to Capital Gain Tax

The gain on the sale is allocated to both the holder and the remainderperson. This is done using complicated IRS tables designed to value both the life estate and the remainder interest in the property.

Tip:  If you are the holder of a life estate and if the sale is of your primary residence and you otherwise qualify, you may exclude the portion of the gain that is allocable to your life interest up to $250,000 ($500,000 on a joint return).

Sale Proceeds for the Portion Allocable to the Life Estate Are Countable For Medicaid Purposes

The portion of the sale price that is considered to be the value of the life estate is deemed payable to the holder and would therefore be countable for Medicaid eligibility purposes.

How Is A Life Estate Created?

After reading this article, some of our Visa clients may be wondering, how is a life estate created? You can establish a life estate through gift, purchase or sale, will, or trust. A life estate trust provides all the benefits of a life estate plus, it may provide for, among other things:

• Increased asset protection because the property is owned by the trust
• Privacy because the property is titled in the trust's name
• The right to change the remainderperson(s)
• Automatic inclusion of remainderpersons (e.g., future children)