Re: [elder] Re: Re: Right to Occupy v. Life Estate

Rob-
        The facts amounted to a life estate in my opinion. He reserved
a right to occupy for life and a duty to maintain and pay the real
estate taxes. The inquirer asked about life estate application and I
opined that it sure looks like one under 2036 IRC. As for Medicaid
planning purposes, it looks like he's transferred the remainder interest
while reserving valuable rights for life. I agree with Kirby that a life
estate is a trust-like arrangement in that the person in possession and
use does not have the legal title. But, he does owe some duties to
protect and preserve the property for the remainderman. Maybe we're
stretching some, but I'm curious about the use of right to occupy you
mentioned. Would there be any significant difference if this grantor had
used some other language?

                                Marv

Marvin J. Rudnitsky, J.D.
Rudnitsky & Hackman, LLP
The Courtyard Offices
1372 N. Susquehanna Trail, Suite 130
Selinsgrove, PA 17870
(570) 743-2333 phone
(570) 743-2347 fax
(888) 505-6115 toll-free
rudnitsky_at_rudnitskyhackman.com
www.rudnitskyhackman.com
 
--------------------------------------------------------
IRS Circular 230 Disclosure: To ensure compliance with requirements
imposed by the IRS, we inform you that the federal tax advice (if any)
contained in this communication (including any attachments) is not
intended or written to be used, and cannot be used, for the purpose of
(i) avoiding penalties under the Internal Revenue Code or (ii)
promoting, marketing or recommending to another party any transactions
or matter addressed herein.
--------------------------------------------------------
Notice: This communication, including attachments, may contain
information that is confidential and protected by the attorney/client or
other privileges. It constitutes non-public information intended to be
conveyed only to the designated recipient(s). If the reader or recipient
of this communication is not the intended recipient, an employee or
agent of the intended recipient who is responsible for delivering it to
the intended recipient, or you believe that you have received this
communication in error, please notify the sender immediately by return
e-mail and promptly delete this e-mail, including attachments without
reading or saving them in any manner. The unauthorized use,
dissemination, distribution, or reproduction of this e-mail, including
attachments, is prohibited and may be unlawful. Receipt by anyone other
than the intended recipient(s) is not a waiver of any attorney/client or
other privilege.
--------------------------------------------------------

-----Original Message-----
From: elder-bounce_at_list.pabar.org [mailto:elder-bounce_at_list.pabar.org]
On Behalf Of Robert Clofine
Sent: Monday, August 21, 2006 4:10 PM
To: elder_at_list.pabar.org; realproperty_at_list.pabar.org
Subject: [elder] Re: [realproperty] Re: Right to Occupy v. Life Estate

I chime in to ask "Why is a life estate a trust?" Doesn't a different
body of law govern life estates than trusts?

FWIW, Pennsylvania law does distinguish between a life estate and a
right to occupy. See Fiduciary Review September 2005. The original facts

were such that it may be that the grantor retained a right to occupy
rather than a life estate.

Rob

-- 
Robert Clofine, Esquire
120 Pine Grove Commons
York, PA 17403-5151
email clofine_at_estateattorney.com
phone 717.747.5995
fax 717.747.5996
http://www.estateattorney.com
 
This email is not confidential and does not create an attorney-client
relationship. The comments contained herein are intended to be of a
general nature only, do not constitute legal advice, and no recipient is
entitled to rely on them for any purpose.
 
Kirby G. Upright wrote:
>Agreed.  A life estate really is a "trust".
>
>Kirby G. Upright, Esquire
>King, Spry, Herman, Freund & Faul, LLC
>One West Broad Street, Suite 700
>Bethlehem, PA  18018
>Telephone (610) 332-0390 or (570) 424-8031
>Fax: (610) 332-0314
> 
>_______________________
>IRS Circular 230 Disclosure:  To ensure compliance with requirements
>imposed by the IRS, we inform you that the federal tax advice (if any)
>contained in this communication (including any attachments) is not
>intended or written to be used, and cannot be used, for the purpose of
>(i) avoiding penalties under the Internal Revenue Code or (ii)
>promoting, marketing or recommending to another party any transactions
>or matter addressed herein.
>________________________
> 
>THE INFORMATION CONTAINED IN THIS COMMUNICATION IS A TRANSMISSION FROM
>THE LAW FIRM OF KING, SPRY, HERMAN, FREUND & FAUL AND IS INFORMATION
>PROTECTED BY THE ATTORNEY/CLIENT AND/OR ATTORNEY/WORK PRODUCT
PRIVILEGE.
>IT IS INTENDED ONLY FOR THE PERSONAL AND CONFIDENTIAL USE OF THE
>RECIPIENT(S) NAMED ABOVE, AND THE PRIVILEGES ARE NOT WAIVED BY VIRTUE
OF
>THIS HAVING BEEN SENT BY ELECTRONIC MAIL.  IF THE PERSON ACTUALLY
>RECEIVING THIS COMMUNICATION, OR ANY OTHER READER OF THIS
COMMUNICATION,
>IS NOT THE NAMED RECIPIENT, ANY USE, DISSEMINATION, DISTRIBUTION OR
>COPYING OF THE COMMUNICATION IS STRICTLY PROHIBITED.  IF YOU HAVE
>RECEIVED THIS COMMUNICATION IN ERROR, PLEASE IMMEDIATELY NOTIFY US BY
>TELEPHONE AND DELTE THE ORIGINAL MESSAGE FROM YOUR SYSTEM.  THANK YOU.
>
>-----Original Message-----
>From: realproperty-bounce_at_list.pabar.org
>[mailto:realproperty-bounce_at_list.pabar.org] On Behalf Of Marvin
>Rudnitsky
>Sent: Thursday, August 17, 2006 2:55 PM
>To: Paul Fabiano; elder_at_list.pabar.org; realproperty_at_list.pabar.org
>Subject: [realproperty] Re: Right to Occupy v. Life Estate
>
>For almost every purpose I can think of, I'd expect that this will be
>treated as a trust or trust-like arrangement, as well as a life estate
>under 2036 IRC.
>
>			Marv
>
>Marvin J. Rudnitsky, J.D.
>Rudnitsky & Hackman, LLP
>The Courtyard Offices
>1372 N. Susquehanna Trail, Suite 130
>Selinsgrove, PA 17870
>(570) 743-2333 phone
>(570) 743-2347 fax
>(888) 505-6115 toll-free
>rudnitsky_at_rudnitskyhackman.com
>www.rudnitskyhackman.com
> 
>--------------------------------------------------------
>IRS Circular 230 Disclosure: To ensure compliance with requirements
>imposed by the IRS, we inform you that the federal tax advice (if any)
>contained in this communication (including any attachments) is not
>intended or written to be used, and cannot be used, for the purpose of
>(i) avoiding penalties under the Internal Revenue Code or (ii)
>promoting, marketing or recommending to another party any transactions
>or matter addressed herein.
>--------------------------------------------------------
>Notice: This communication, including attachments, may contain
>information that is confidential and protected by the attorney/client
or
>other privileges. It constitutes non-public information intended to be
>conveyed only to the designated recipient(s). If the reader or
recipient
>of this communication is not the intended recipient, an employee or
>agent of the intended recipient who is responsible for delivering it to
>the intended recipient, or you believe that you have received this
>communication in error, please notify the sender immediately by return
>e-mail and promptly delete this e-mail, including attachments without
>reading or saving them in any manner. The unauthorized use,
>dissemination, distribution, or reproduction of this e-mail, including
>attachments, is prohibited and may be unlawful. Receipt by anyone other
>than the intended recipient(s) is not a waiver of any attorney/client
or
>other privilege. 
>--------------------------------------------------------
>
>-----Original Message-----
>From: realproperty-bounce_at_list.pabar.org
>[mailto:realproperty-bounce_at_list.pabar.org] On Behalf Of Paul Fabiano
>Sent: Thursday, August 17, 2006 9:59 AM
>To: elder_at_list.pabar.org; realproperty_at_list.pabar.org
>Subject: [realproperty] Right to Occupy v. Life Estate
>
>Grantor executes deed and reserves right to use and occupy premises as
>personal residence for life.  He cannot rent property, but is
>responsible for maintenance and taxes. There is nothing prohibiting the
>sale of the life estate, but upon the sale of the whole premises,
>grantor would receive no proceeds. 
>
> 
>
>Does anyone have experience or problems with such a deed in regard to
>Medicaid planning? Is this viewed as a life estate?
>
> 
>
> 
>
> 
>
> 
>
> 
>
> 
>
> 
>
>Paul T. Fabiano, JD, LLM
>
>Tax Counsel
>
>Molewski Financial Partners
>
>100 Gateway Drive, Suite 300
>
>Bethlehem, PA 18017
>
> 
>
> 
>
>Phone:  610-865-2600
>
>Fax: 610-865-2408
>
> 
>
>pfabiano_at_molewskifinancial.com <mailto:pfabiano_at_molewskifinancial.com> 
>
>www.molewskifinancial.com <http://www.molewskifinancial.com/> 
>
> ****** FEDERAL TAX ADVICE NOTICE ****** 
>
>ANY FEDERAL TAX RELATED INFORMATION ABOVE OR ATTACHED WAS NOT INTENDED
>OR WRITTEN TO BE USED, AND IT CANNOT BE USED, BY YOU FOR THE PURPOSES
OF
>AVOIDING ANY PENALTY THAT MAY BE IMPOSED BY THE INTERNAL REVENUE
>SERVICE.   BASED ON THE PARTICULAR CIRCUMSTANCES, YOU SHOULD SEEK
ADVICE
>FROM AN INDEPENDENT TAX ADVISOR.
>
> 
>
>****** CONFIDENTIALITY NOTICE ****** 
>
>THIS E-MAIL, INCLUDING ANY ATTACHED FILES, MAY CONTAIN CONFIDENTIAL,
>PROPRIETARY AND/OR PRIVILEGED INFORMATION FOR THE SOLE USE OF THE
>INTENDED RECIPIENT(S). ANY REVIEW, USE, DISTRIBUTION, COPY OR
DISCLOSURE
>BY OTHERS IS STRICTLY PROHIBITED. IF YOU ARE NOT THE INTENDED RECIPIENT
>(OR AUTHORIZED TO RECEIVE INFORMATION FOR THE RECIPIENT), PLEASE
CONTACT
>THE SENDER AND DELETE ALL COPIES OF THIS MESSAGE.
>
>THANK YOU
>
> 
>
>
>
>
>
>
>
>
>
>  
>