Fee Simple and Fee Simple Absolute

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 What is Estate Law?

Estate law is a subcategory of property law that governs the way the estate of a testator is handled, which includes overseeing how the testator’s property is managed during their lifetime as well as how their property is managed after they become incapacitated or pass away.

The term estate refers to the total of an individual’s:

  • Personal belongings;
  • Real property; and
  • Intangible assets, including patents or copyrights.

If there are any taxes or debts which are owed on the testator’s property, it may also be considered part of the estate. Because of this, estate law governs a broad range of legal issues, including most issues which are related to an individual’s real property as well as the financial aspects related to that property.

Estate law also often overlaps with the laws which govern trusts and wills as well as the rules that govern estate planning.

What Does Estate Law Cover?

As discussed above, estate laws govern matters which include:

Estate planning serves as a guide for other individuals regarding how the testator wants their property to be distributed upon their death or incapacitation. In addition to issues related to wills and trusts, estate planning may address other issues, such as:

  • Organ donation;
  • Legal guardian matters;
  • Medical treatments; and
  • Funeral arrangements.

Estate administration is the process of managing and distributing the testator’s estate after their death. In most cases, this is handled by a designated executor, or, if the individual died without a will, their property will be distributed according to intestate laws, or the laws of their state.

The executor, also referred to as the administrator, is legally responsible for fulfilling specific duties. The executor is also required to carry out the wishes of the testator in accordance with the instructions provided in their will.

The distribution of property is the ultimate goal of estate planning. It refers to the way the testator’s property is distributed to the beneficiaries named in the will.

Debts are also a part of a testator’s estate. This is because the debts which an individual owes at the time of their death will have to be addressed, even if they become incapacitated or pass away.

In addition, estate laws are based upon state and local statutes in a jurisdiction. Because of this, they will likely vary depending upon what state the testator resides in.

This may affect how the legal issues related to an estate are handled and may impact the solutions which are available. For example, if an individual owns a home in Florida and they decide to sell that home and move to a different state, if they do not update their will, a court may be required to intervene and resolve this estate issue.

If this does not occur, the surviving beneficiary may not receive any inheritance, even if the testator did own a home in a different state. Because of the numerous issues related to estate law, it is important to consult with an estate attorney if an individual is facing an estate issue.

What is a Conveyance, and How does it Occur?

A conveyance is a legal term which refers to the transfer of the title of real property from one individual to another individual. A conveyance occurs when an owner of real estate transfers their ownership of that property to another individual or entity.

A conveyance may be made of a home or other type of property, such as commercial real estate. Conveyances may occur in full or an owner may choose only to transfer a portion of their ownership interest.

A conveyance may occur in numerous different ways, including, but not limited to:

  • Through a sale of the land or property;
  • Through transfer as a gift; or
  • By inheritance, for example, through succession laws.

Generally, statute of frauds laws require that a real estate sale is to be recorded in a written contract. Therefore, a conveyance of a title to real property is required to be in writing if it involves a sale of the property.

This is done to avoid any disputes or breaches of contract in the future as well as to establish the legal owner of the property for any other purpose, including taxes.

The owner of the property, known as the grantor, is required to use words of conveyance to transfer their interest in property to the individual receiving the property, or the grantee. Words of conveyance show the individual’s intent to transfer the title of the real property but the exact language may vary by jurisdiction.

The transfer of an actual, physical deed is not required to occur so long as the individual clearly expresses their intention to make the conveyance. The deed is required to:

  • Be in writing;
  • Be signed;
  • Be dated; and
  • Contain a description of the land which is being transferred.

In addition, in order for a valid conveyance to occur, it should not have any defects, including an improperly recorded title.

What is a Fee Simple?

A fee simple is an interest in property, usually land, which has two unique characteristics, including that the property may be possessed indefinitely and it may be inherited by the individual’s heirs. It is important to note that property interest cannot be a fee simple if either one of those elements is not present.

Are There Different Types of Fee Simple?

Yes, there are two categories of fee simple property interests, including fee simple defeasible and fee simple absolute. A fee simple defeasible is a fee simple which has the possibility of ending with the violation of a condition.

A fee simple defeasible can sometimes be confusing because it is easy to assume that if the interests cannot end that one of the required characteristics may not be present. Therefore, it is important to remember that if a condition will never be violated, the property will be indefinitely owned and the future interest will never vest.

A fee simple absolute is what an individual usually thinks of when another individual owns something. This type of interest is one that an individual will receive when they either purchase land or receive land as a gift.

This type of interest is absolute because the interest will not terminate upon the occurrence of a condition. The owner of a fee simple absolute has several rights, including:

  • The right of possession;
  • The right of alienation; and
  • The right of exclusion.

Traditionally, the words of conveyance which were required to create a fee simple absolute were something similar to, “from X to Y and his heirs.” However, a fee simple absolute is the preferred type of property interest and a court will view all conveyances as fee simple absolute unless there is clear language to the contrary.

Will I Need a Lawyer to Determine the Type of Estate I Have?

As previously noted, the majority of property interests are conveyed as fee simple absolute. The property deed should indicate the type of interest that the owner possesses.

If it does not contain any words of conveyance which indicate that a fee simple defeasible, life estate, or fee tail was conveyed, the interest is most likely a fee simple absolute. If you have any issues, questions, or concerns regarding the language in a deed, it may be helpful to consult with an estate planning lawyer to determine what type of property interest you possess.

In addition, if you desire to convey property in a certain manner, it may be helpful to consult with an estate lawyer who will be able to draft the conveyance in accordance with your wishes.

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