B. Concepts, Vocabulary, and Conventions

To begin understanding how the law divides up interests in land over time, we begin with the fundamental distinction between possessory estates and future interests. A possessory estate is a legal interest that confers on its owner the right to present possession of some thing. A future interest is a legal interest that exists in the present, but does not entitle the owner to possession until some point in the future.

This may sound confusing, but you are probably already familiar with an arrangement that follows this pattern: a lease. A lease is a transaction in which the landlord gives the tenant a possessory estate (a leasehold estate), and retains a future interest—the right to retake possession after the lease term ends. This retained future interest—an unqualified right to future possession retained by the party who created the possessory interest that precedes it—is called a reversion. (Landlord-tenant relationships are obviously more complicated than this—they entail a number of contractual rights and obligations and are heavily regulated by statutory and decisional law and, in many cases, administrative codes. We cover these relationships more thoroughly in our unit on Landlord and Tenant.)

The idea that both landlord and tenant can have legal interests in the same parcel of land at the same time, even though only one of them has the right to possess the land at any given time, is a good introduction to the concept of future interests. If you think about it, you will probably recognize that the basic idea of a lease implies certain rights and powers of a landlord in the leased premises even during the term of the lease. The most important one is the reversionary right itself: the right to take possession at some point in the future. That’s a right the tenant can’t take away, even while the tenant has the right to possession. The landlord might be interested in selling (or mortgaging) this reversionary right, even before the lease ends. And if she does sell or mortgage her interest (which she may, subject to the tenant’s interest), the thing sold is not “the property”; it is the landlord’s reversion: a legal interest in real property that exists in the present but will not entitle its holder to possession of that real property until some point in the future.

When learning about estates and future interests, we will follow some conventions that will simplify our discussion as much as possible. Most of our problems will involve an owner of land transferring some interest in that land to one or more other parties. Following longstanding tradition in the study of Anglo-American property law, we will refer to the parcel of land in question as “Blackacre” (or “Whiteacre,” “Greenacre,” “Ochreacre,” etc. if more than one parcel is at issue). We will refer to the original owner as O, and the other parties as A, B, C, etc.

In addition, there are a variety of technical terms that arise, a few of which you should be familiar with:
• A grant or conveyance is a transfer of an interest in property. The person making the grant is the grantor (or transferor); the person receiving the grant is the grantee (or transferee). If the grant is made during the life of the grantor, it is said to be an inter vivos conveyance (literally, “between the living”). If in a will, it is said to be a testamentary conveyance. A testamentary conveyance of real property is called a devise. A testamentary conveyance of personal property is called a bequest (or sometimes a legacy).

• When a person dies, they will either have left a valid will or not. A person who dies with a valid will dies testate; one who dies without a valid will dies intestate. Either way, the dead person can be referred to as a decedent. If the decedent did leave a valid will, they may also be referred to as a testator if male, or a testatrix if female.

• The assets that a decedent owned at her death are collectively referred to as the decedent’s estate. An estate can sometimes take on the qualities of a legal person—it is not uncommon to say that a certain asset is owned by “the estate of O.” The property rights of this fictional legal person are managed by an actual person whose title depends on whether the decedent left a will. The instructions in a will are carried out by an executor (if male) or executrix (if female), designated as such in the will itself. An intestate estate is disposed of by a court-appointed administrator (if male) or administratrix (if female).

• The authority of an administrator or executor to dispose of the estate’s assets is conferred by a probate court. When a valid will is filed with the probate court and deemed valid, the court will admit the will to probate (or probate the will), and will issue letters testamentary to the executor authorizing him to take possession of the estate’s assets and dispose of them according to the will’s instructions. If the decedent died intestate, the court will issue letters of administration to an administrator authorizing him to take possession of the estate’s assets and dispose of them according to the laws of intestate succession.

• If the decedent did leave a valid will, it will typically contain instructions for transferring assets to various identified people or entities. The parties receiving the bequests are referred to as the will’s beneficiaries, devisees (for real property), or legatees (for personal property). When a decedent passes property by will he or she is said to have devised that property. A property interest that the decedent has the power to transfer by will is said to be devisable.

• Sometimes a will fails to provide instructions for all the assets owned by the testator at death; in this case the unallocated assets are said to create a partial intestacy. When this happens, assets designated in the will are distributed according to the will’s terms, while the estate’s remaining assets are distributed according to the laws of intestate succession. In order to avoid partial intestacy, it is good practice to include a residuary clause in a will, disposing of all the assets of the decedent not devised through specific bequests. Such unenumerated assets are referred to as the residuary estate.

• If the decedent did not leave a valid will, her property will pass to her heirs (sometimes referred to as heirs at law). Heirs are those who are designated by law as successors to property that passes by intestate succession rather than by will. When heirs take such property, they are said to inherit it. A property interest that can pass by intestate succession is said to be descendible.

• Note that until the decedent actually dies, we don’t know who her heirs are; rights of inheritance are allocated only to relatives of the decedent who survive her—who are still alive when the decedent dies. Thus, until a property owner dies, her relatives have no legally enforceable rights in her property under the laws of intestate succession. It is sometimes said that such relatives have a mere expectancy, and they are sometimes referred to as heirs apparent.

• Heirs under intestacy laws are drawn from various categories of relatives. In addition to spouses, there are issue: the direct descendants of the decedent (children, grandchildren, great-grandchildren, etc.); ancestors (parents, grandparents, great-grandparents, etc.); and collaterals: relatives who are not direct ancestors or descendants (siblings, aunts, uncles, nieces, nephews, cousins).

• If a person dies without a will and without any heirs at law, any property in their estate escheats to the state, which becomes its owner.