Restrictions on Property Use

April 13, 2006

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When you create a will that substantially restricts your heirs' ability to use the property (or to pass it along to their heirs at death), two conflicting legal principles are involved:

Property owners should be allowed to dispose of their property as they wish.
Property should not be unduly "controlled from the grave."

What do these principles mean to you? Mainly, that you can dispose of your property at death as you wish, but if you attach certain types of restrictions on the bequest, you run the risk that the bequest (or at least the restriction), will not be given effect by the probate court. Most states have specific rules limiting the time, or the number of generations, that a property restriction will remain effective. If you insist on using such restrictions in a will, consult a attorney, who can steer you clear of the type of restrictions that may lead to problems in your state.

Here we will consider two specialized forms of future interests that you can create in real property by way of a will. They are known as:

a possibility of reverter, and
a right of entry

Excuse the strange terminology (it's legalese going back 400 years or so). Simply stated, these provisions enable a person to provide that a will beneficiary is to receive some property, but the property will come back to the giver if a specified event or property use occurs. For example, a property could be given to "X, on the condition that alcoholic beverages are never sold on the premises."

The main difference between a possibility of reverter and a right of entry is that the possibility of reverter is automatically deemed to transfer ownership upon the happening of the specified event, while with a right of entry, your heirs would have to take legal action to get the property back after the event occurred.

The courts strongly disfavor both possibilities of reverters, and rights of entry. Although each can still be used, if you're looking to use will bequests to change or control someone's behavior, you'll probably have a much easier time of it by bequeathing your property to a trust that can achieve the same result by use of different means.