Estate

• Author: Jeffrey Lehman, Shirelle Phelps

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The degree, quantity, nature, and extent of interest that a person has in real and PERSONAL PROPERTY. Such terms as estate in land, tenement, and hereditaments may also be used to describe an individual's interest in property.

When used in connection with probate proceedings, the term encompasses the total property that is owned by a decedent prior to the distribution of that property in accordance with the terms of a will, or when there is no will, by the laws of inheritance in the state of domicile of the decedent. It means, ordinarily, the whole of the property owned by anyone, the realty as well as the personalty.

In its broadest sense, the social, civic, or political condition or standing of a person; or, a class of persons grouped for social, civic, or political purposes.

There are several types of estates that govern interests in real property. They are freehold estates, nonfreehold estates, concurrent estates, specialty estates, future interests, and incorporeal interests.

Freehold Estates

A freehold estate is a right of title to land that is characterized by two essential elements: immobility, meaning that the property involved is either land or an interest that is attached to or has been derived from land, and indeterminate duration, which means there is no fixed duration of ownership.

There are three kinds of freehold estates: a fee simple, a fee tail, and a life estate.

Fee Simple Absolute A fee simple absolute is the most extensive interest in real property that an individual can possess, since it is limited completely to the individual and his or her heirs and assigns forever, and it is not subject to any limitations or conditions.

For example, an individual might purchase a plot of land for which the deed states that the grantor transfers the property "to grantee and his or her heirs," which would have the legal effect of creating a fee simple absolute. The grantee has the right to immediate and exclusive possession of the land, and he or she can do whatever he or she wants with it, such as grow crops, remove trees, build on it, sell it, or dispose of it by will. This type of estate is deemed to be perpetual. Upon the death of the owner, if no provision has been made for its distribution, the land will automatically be inherited by the owner's heirs.

Fee Simple Determinable A fee simple determinable, which is also referred to as a base fee or qualified fee, is one that continues until the occurrence of a specified event. When such an event occurs, the estate will terminate automatically by operation of law, at which time the ownership reverts to the grantor or his or her heirs.

For example, a grantor makes the following conveyance: "To grantee and his or her heirs so long as it is used for school purposes." The grantor's intent is clearly indicated when he or she creates the estate. When the grantee ceases to use the land for school purposes, the grantor has the right to immediate possession. The grantee's estate is restricted to the period during which the land is used for school purposes.

The interest of the grantor is known as a possibility of reverter. Ordinarily the words until or as long as indicate the creation of a special limitation.

Fee Simple Subject to a Condition Subsequent A fee simple subject to a condition subsequent is an estate that terminates only upon the exercise of the power of termination, or right of reentry, for the violation of a particular condition. It differs from a fee simple determinable in that the latter expires automatically, by operation of law, upon the happening of the event specified. A fee simple subject to a condition subsequent continues even after the occurrence of the event until the grantor divests the estate or ends it through the exercise of his or her power to terminate.

For example, the grantor conveys land "to grantee and his or her heirs, but if the premises are used for commercial purposes other than the sale of antiques, then the grantor has the right to reenter and repossess the property."

The grantor has the power to end the grantee's fee through his or her reentry onto the premises if the condition is violated. Reentry, however, is totally at the option of the grantor. The grantee's estate continues until the grantor either enters the land or brings an action to recover possession. When the grantor does reenter the land, the remaining portion of the grantee's estate is forfeited.

Ordinarily, the words used in conveyance to create an estate subject to a condition subsequent are upon condition that, provided that, or but if, together with a provision for reentry by the grantor.

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Fee Simple Subject to Executory Limitation At English COMMON LAW, a grantor was not able to create a freehold estate that was to begin in futuro, at a subsequent time, because LIVERY OF SEISIN (actual possession) was essential...