Modern Real Property Estates and Interests

By Gracie Davis – Deputy Executive Assistant at West Virginia Senior Legal Aid, Inc.

June 17, 2024

It is crucial to know what type of estate one has and what type of estate they will give

away once they leave the estate to cross the “rainbow bridge.” This article will lay out the types of estates one may possess/give and their present/future interests, so they can be understood with no sweat!

First, a fee simple absolute is the “golden goose” of property because of the free range

the owner has over it. The owner possesses the rights to transfer, exclude, use, and destroy. Fee simple absolutes are freely alienable (i.e., can be sold/transferred), devisable (i.e., can be

transferred via a will or testament), and descendible (i.e., can be inherited by another). An

example of language in a deed that creates a fee simple absolute is “I grant this to Gracie and her heirs forever.”

Second, a life estate is an estate that dies with the owner, for it is measured by one’s life.

Furthermore, there is the life estate pur autre vie, which is measured by the life of a third party. When the third party dies, then the estate reverts to the grantor (i.e., the original grantor). Life estates are alienable but not devisable or descendible, which makes sense since the estate dies with a specific person. An example of language in a deed that creates a life estate is “I grant this to Gracie [for life/until Gracie dies/while Gracie is alive].” For a life estate pur autre vie, an example is “I grant this to Gracie [until Patrick dies/while Patrick is alive].”

Third, fourth, and fifth, a fee simple defeasible is an estate that may end upon the

occurrence of a future event. As alluded, there are 3 types of defeasible estates: (1) fee simple determinable; (2) fee simple subject to a condition subsequent; and (3) fee simple subject to an executory limitation.

Third, a fee simple determinable is an estate that automatically ends when a specific

event occurs, reverting possession to the grantor. Fee simple determinables are alienable,

devisable, and descendible. Examples of language that creates a fee simple determinable are “I grant this to Gracie [so long as/while] she is a lawyer,” “I grant this to Patrick until he builds a bridge that collapses,” or “I grant this to Gracie and Patrick while they are together.” If a listed condition is met, the estate automatically goes back to the grantor.

Fourth, a fee simple subject to a condition subsequent that may be terminated at the

grantor’s will if a specific event/condition occurs. Fee simples subject to a condition subsequent are freely alienable, devisable, and descendible. Examples of language that creates a fee simple determinable are “I grant this to Gracie [provided that/on the condition that] she graduates law school,” “I grant this to Patrick unless he quits his job,” and “I grant this to Gracie and Patrick, but if they never marry, I retain the right of re-entry and the ability to reclaim the property.” However, a grantor must reenter land within a reasonable time after the breach to declare a forfeiture or to elect not to declare a forfeiture.

Fifth, a fee simple subject to an executory limitation is a fee simple defeasible created

grantee that is followed by a future interest in another grantee rather than the grantor. These are very similar to fee simples subject to a condition subsequent, including the language used. However, if the condition is met, the estate goes to a third party. For example, “I, Gracie, transfer this to Patrick, but if he does not take care of my cats, it reverts to Liz.” Liz would possess an “executory interest,” which is also alienable, devisable, and descendible. Liz would only have an executory interest and would not have a “contingent remainder” because her possession is conditional, and remainders must happen at least at some point. One may also have a contingent remainder if they are not concrete enough, like unborn children for example. That is why many mix up executory interests and remainders. If the person and condition are ascertainable (e.g., a living person gets the estate after the owner dies), then they have a “vested remainder” and will receive the estate for the remainder of time.

Sixth, a term of years is an estate given to an individual for a specified duration. For

example, Liz conveys the estate “to Patrick and Gracie for 100 years.” Patrick and Gracie have “a term of years,” and Liz and her heirs have a “reversion” and will get the estate back after 100 years.

Seventh, (and not so importantly since it is virtually extinct), a fee tail is an estate pulled

straight out of Pride and Prejudice simply put. The lives of the lineal descendants of a specific individual determine its duration. An example of language that creates a fee tail estate is “I grant this to Gracie and the heirs of her body.” Since the estate automatically passes to the lineal heirs upon the possessor’s death, it is not devisable. Thus, the grantor technically has a “reversion” and will get the estate back when there are no more heirs.

As you can see, there are numerous types of estates, and these are only the modern freehold

estates! Additionally, the language in a deed is immensely important. Consult with a licensed attorney for legal advice.