Can property be willed so that it can never be sold or mortgaged?

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Can property be willed so that it can never be sold or mortgaged?

Can someone leave a child some land and it be stipulated that the land can never be sold or mortgaged?

Asked on August 25, 2011 Alabama

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 years ago | Contributor

People try and control their earthly possessions even from the grave, as they say.  And although you may indeed be able to put such a condition in a last Will and Testatment, portions of such a "decree" may in fact violate other provisions of the law.  For example, if you "give" someone the property but put such restrictions on it so that they do not really have ownership rights (an owner can sell or encumber property as need be) then it may violate the Rule against Perpetuities, which is a rule that derives from common law that no interest in property is good unless it vests no later than 21 years after some period of life and conveyance.  That is simplistic and it is really much more complicated but you get the point.  As for the mortgaging, should the property go in to tax rem becuase they can not mortgage it to pay the taxes?  Or maintain it?  Sometimes people crete a trust and place the proeprty in the trust but that too has to end at some point in time.  Seek help on this.  There are better methods of estate planning.  Good luck. 


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