Lifetime Right of Occupancy Residential Real Property Questions ?

[LdiJ]

There are two locales that can make a difference.

The most important locale, actually kind of two localities in itself is the state the trust was created in and secondly the state where any action concerning the trust is taking place. The first is important because the laws under which it was written can affect how any interpretation is made. Then the second state is important as the laws of whatever state any legal action might be taken concerning the trust is important as it can affect the interpretation of the terms as well as the implementation of the terms.


Then, why an attorney local to you is important is, regardless of what form of communication with a distant attorney you may have, it is impossible to equal the communication you have when setting face to face with a person. Conversation, with all the nuances of voice inflection as well as physical cues allow for a conversation with a much better level of understanding of both parties by the other.


Regarding you having read the trust and your question;

If you are asking an attorney to give you an opinion, the first thing they need to do is read any concerned document in its entirety. You having read it will allow you to form questions and determine what answers you are looking for but you conveying anything then the complete and exact verbiage of the document will not allow the attorney to be able to understand the document in full and be able to provide you with the most accurate answers. Without the ability to read the entire contract you are asking the attorney to give an opinion based on your interpretation of the section but you are also asking them to give you an opinion without the ability to determine if there is some other section in the contract that could completely alter what you read to them.

So, you having read it is important but the attorney reading it, in whole, is critical to receiving a valid response.

That was a MUCH more comprehensive answer than mine. Thank you for posting that.

 

[TrustProblems]

Nothing to inperpret

I hear what you guys are saying, everything leads to an attorney, I get that.

I don't see anything more to interpret as there is only what I posted regarding the property. All the other sections are other subject matters.

 

[justalayman]

You just stated you posted everything mentioning the property. The fact is anyyhing you posted referring to the content of the trust was not quote and if obviously is not everything since all you posted was;

When spouse moves house will be distributed to beneficiaries.

If that is all it really says you have a lot more problems than you realize. For example; it doesn't say spouse gets to live in the property but somewhere along the line you figured a life estate was created. From what you wrote, that is far from clear.


You posted your interpretation of what the trust says regarding the property. Given legal documents can contain very subtle nuances where very specific terms make a difference in the interpretation, you are doing what you came here to ask about; an interpretation of the terms of the trust. If you are going to trust your interpretation regardless what anybody says, just save your money on an attorney since it doesn't matter what they say, you have already interpreted it yourself.



Regarding your questions to me that I missed until now;

Why I said you would end up at a lawyers if the trust retained title;

This is not a typical life estate. A typical life estate is where the tenant is given a deeded right of possession. It is a legally enforceable of possession for the duration of their life that is terminable only under very few and fairly well established situations. Along with that, the rights of the tenant and remaindermen are established through case law. The tenant has the full control of the property as if it was owned by them, including a right to exclude the remaindermen from entering the property if they so choose.

None of that is going to be applicable to your situation. The tenant has no title rights so right off the top, it makes it very similar to a typical landlord tenant relationship rather than a life estate. So, how are ant obligations regarding the property determined? Who is even required to pay utikities? Who pays for upkeep or major repairs? Does the trustee have any rights to ensure the property is not being destroyed? With no rules stated, it reverts to any applicable law on the matter or if none, to either an agreement of the parties or if an agreement cannot be reached, a courts opinion.

That is why I said you would end up at an attorneys office.

Why would an attorney write a trust with such a flaw; my first thought is incompetence. No attorney is skilled enough to practice in all areas of the law. Maybe the writer didn't understand trusts as well as he believed he did. I cannot give you THE answer but merely speculate as to what it might be.


Regarding who currently holds title;

If the property is actually in the trust, the trust holds title and the executor of the estate has no power to do anything here. The trustee controls what happens to property in the trust. If there is a deeded life estate, it is the obligation of the trustee to have a deed constructed thst fulfills the terms of the trust.

But it doesn't sound like there is to be a deeded life estate.

From your statement I wonder if the property was even put into the trust. I also have concerns about the qualifications of the executor. Have they hired an attorney to assist with probate? If not it is clear they need one.

How would the remainder of the life estate be calculated?

It may be wholly irrelevant to your situation. It is not clear from what you have posted but how it is determined is by using actuarial tables which determine the expected life of the tenant which the actual age is subtracted from resulting with the amount if time the life estate is expected to last

 

[TrustProblems]

You just stated you posted everything mentioning the property. The fact is anyyhing you posted referring to the content of the trust was not quote and if obviously is not everything since all you posted was;

"The trustee shall distribute the Trust Estate as follows: Lifetime right of occupancy or should cease to occupy for any reason it will be distributed to beneficiaries."

That is what is says. There should be some law that applies to this wording I would imagine. Sounds like it could be a lifetime estate to me.

You posted your interpretation of what the trust says regarding the property. Given legal documents can contain very subtle nuances where very specific terms make a difference in the interpretation, you are doing what you came here to ask about; an interpretation of the terms of the trust. If you are going to trust your interpretation regardless what anybody says, just save your money on an attorney since it doesn't matter what they say, you have already interpreted it yourself.

Well I don't recall anything about interpretation, I just wrote the words I read and my thoughts.

None of that is going to be applicable to your situation. The tenant has no title rights so right off the top, it makes it very similar to a typical landlord tenant relationship rather than a life estate.

What tells you that ? I am reading and hearing that a lifetime right to occupancy is a form of a life estate. They have title while they live there, but not when they cease to ocuppy. Then title changes. You say no ?

Why would an attorney write a trust with such a flaw; my first thought is incompetence. No attorney is skilled enough to practice in all areas of the law. Maybe the writer didn't understand trusts as well as he believed he did. I cannot give you THE answer but merely speculate as to what it might be.

Hmmm, so the attorney was incompetent or we don't know why or possibly he wrote it correctly.

Regarding who currently holds title;

If the property is actually in the trust, the trust holds title and the executor of the estate has no power to do anything here. The trustee controls what happens to property in the trust. If there is a deeded life estate, it is the obligation of the trustee to have a deed constructed thst fulfills the terms of the trust.

I would imagine there can be confusion for the trustee. I know see an attorney. But this is a legal discussion forum.

From your statement I wonder if the property was even put into the trust.

According to the trust "schedule A", it was in the trust at one point. Not sure what statement you are referring to ?

I also have concerns about the qualifications of the executor. Have they hired an attorney to assist with probate? If not it is clear they need one.

I thought executors were typically family members, what qualifications should they have ? I agree about possibly getting an attorney. So far no probate is needed regarded the matter we are speaking of, that I know.

 

[TrustProblems]

A right of occupancy is such a vague statement it will be difficult to determine what rights other than being in the home she has. As well determining her obligations will be equally elusive.

Then why would an attorney use the term in a trust ? Why would the law allow such a term to be used ? Why wouldn't a trust be written with clear instructions ?

That suggests the trust retains control over the property. Otherwise the trust would have no ability to distribute the property to anybody. While there are ways to create an ownership interest for the spouse and after the cessation of their occupancy title would revert back to the trust where the trust could then distribute the property as directed, that adds complications and problems that are not necessary to effect the directive of the trust as there are simpler means with fewer concerns and possible problems available.

OK, what are they ?

But if this is an exact quote;


"The trustee shall distribute the Trust Estate as follows: Lifetime right of occupancy or should cease to occupy for any reason it will be distributed to beneficiaries."

There is obviously a problem with the trust. Besides the sentence being grammatically incorrect, it is very confusing and does not convey a clear directive. The problematic part is the:

Lifetime right of occupancy or should cease to occupy


What does that even mean. ?

It should say, "should she cease to occupy".

And that brings me to the conclusion; no, the attorney did not write it correctly.

The statement about the trust holding title; who holds title was unclear due to the fact you spoke of the executor not knowing what to do concerning this lifetime tenancy. If the trust holds title, the executor doesn't do anything with the issue. It is not their concern and they have no authority to do a darned thing so they should worry about issues under their control.

The worry that I came here for is, who pays taxes, maintenance, repairs and so forth ?

But even more concerning is you statement that there is no probate needed regarding the matter at hand;

If probate has not been opened, there is no executor, period. If probate has been opened for other reasons, while there will be an executor (or whatever title the given state bestows upon the person in control of the probate), there will never be a need for probate regarding the matter at hand. A trust is "outside of probate" and as such, probate does not control any aspect of the trust with the exception being if there is a pour over will directing assets of the decedent to be placed into the trust. Even there the only involvement between probate and the trust is the assets being transferred to the trust.

Not sure your point here, on one hand you took exception with my no probate statement, then went on to say there should be no probate yourself ?

More brow beating ? lol

I guess the term executor is used for probate and trustee is for stuff going on in the trust. I learned something new. I think it is obvious what I mean and that my terminology is off, but maybe not ?

As to who can be executor? Sure, just about anybody can. It doesn't mean everybody should. Given the executors concern about matters of the trust, it suggests they don't know enough about either to do anything without a lawyer first advising them what to do.

This does sound likely at this point. I don't know why clear instructions are not written down somewhere for the trustee, but maybe they are and I don't see it in the trust documents I have.

 

[quincy]

TrustProblems, you do not need to start new threads for every question you have about the trust. There is not only no need for this, this forum prefers to have all related questions kept to a single thread. It helps the volunteers on this forum help you better.

So, from now on, instead of creating a new thread for each new question you have on this trust, please keep all of your related questions to this one thread. It would be appreciated.

Thank you.

 

[TrustProblems]

TrustProblems, you do not need to start new threads for every question you have about the trust. There is not only no need for this, this forum prefers to have all related questions kept to a single thread. It helps the volunteers on this forum help you better.

So, from now on, instead of creating a new thread for each new question you have on this trust, please keep all of your related questions to this one thread. It would be appreciated.

Thank you.

I know you want to control posters and brow beat them into seeing an attorney, that is obvious from the "free legal advice".

I think keeping ideas in separate subjects is the best, they are separate ideas and I want to keep things clear.

Is there a forum rule that says I have to post everything in one thread ?

I never said they all pertain to the same trust, you assumed that ?

 

[TrustProblems]

TrustProblems, you do not need to start new threads for every question you have about the trust. There is not only no need for this, this forum prefers to have all related questions kept to a single thread. It helps the volunteers on this forum help you better.

So, from now on, instead of creating a new thread for each new question you have on this trust, please keep all of your related questions to this one thread. It would be appreciated.

Thank you.

I'll do what I please. You can always delete them like you are doing.