Expert: Dick Dennis - 11/11/2008

Question
This is a very complicated situation involving my elderly aunt.  My first, I hope simple question, is can a life estate be legally created in one half of a duplex?  Each half of the duplex bears a separate address but the legal description of the property describes it as a duplex under the lower of the two addresses (i.e. 213). The lot number mentions only the lower address.

An attorney told my aunt he created a document giving her a life estate in the other address (i.e. 215).  The whole duplex has since been sold twice, a mortgage made on it, and it is now in foreclosure. The current owner has surrendered it to the bank pursuant a bankruptcy chapter 13 plan.  The bankruptcy court has lifted to stay with regard to the property.  We could find no mention of any life estate in the mortgage on the property nor in the bankruptcy file.  Also we do not believe the document purporting to be a life estate was ever recorded.  There is no life estate recorded with the deed to 213 and no deed at all for 215.

Might my aunt have any recource and if so against whom?

Also since the property was surrendered in the bankruptcy will the bank also have to obtain a state court order allowing them to take the property?  Any idea how long that could take.  BTW the property is in Preble County, Ohio.  Thank you.

Answer
This is definitely a case for an ESTATE attorney, Jennifer, not just any attorney. A real estate attorney might have enough knowledge to handle this, too. However, a life estate is usually created after the sale of the subject property by the beneficiary of the life estate. In any case, an owner must have agreed to give your aunt a life estate. The attorney who stipulated a life estate on a property she never owned or the owner at the time knew nothing about, was either mislead about the information or had no business doing the life estate. Under what circumstances was your aunt given the life estate? If she was a tenant BEFORE she was given the life estate, then she has no life estate without the approval of the owher at the time. She may have a recourse against the attorney who gave her the life estate. But you just know the attorney will wiggle out of the responsibility. And who has the money to sue an attorney? She probably should take it to the Ohio Bar Association if she really feels she has a case. I do wish you well.

Dick Dennis