Q: How do we get out of a life estate?
A family member left her son a life estate and upon his passing left it jointly to myself and my brother and then to each of our children. The problem is the current life tenant struggle with both up keeping a very large farm and also financially struggles to pay the taxes due on it. Him, myself and my brother all want out of the life estate and would like to sell the property-completely ending our interest in it. I've been told that it can not be done because in my state there is no Rule Against Perpetuities in force. I've also been told that it can absolutely be done via lawsuit and the court would appoint an attorney to represent the "unborn and unascertainable heirs". If that is true what would that look like, who sues who? It would seem crazy to me that someone could be deceased and still control property forever.
A: If the current life tenant wants to sell, and both remainder men are in agreement, just sell it to a purchaser. OnCe all three of you sign a deed, the life estate is extinguished and the property can be conveyed.
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A: Apparently there is more than just a life estate involved. Your lawyers think there must be a class gift to all children, born or not, involved, and if so, litigation with an attorney appointed to represent the unborn class members will be required. They, the defendants, receive notice through service by publication and service on the their attorney. It is doubtful there would be opposition, but it must be filed correctly and prosecuted to the end. With proper litigation, the RAP (which might help you) will not be an issue. If it is only a life estate/remainder deed, then Mr. Denison is absolutely correct.
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