Legal Question in Wills and Trusts in Virginia

Re: Life estate question

You should consult with a Virginia attorney to discuss the application of the law to the facts of your situation. The following is general legal information on life estates, durable powers of attorney, and conservators in Virginia.

A life estate is an estate or interest in property that lasts for the duration of the life of some person (the measuring life). The measuring life is usually the life of the holder of the life estate, but it may be of some other person. A life estate measured by the life of a person other than the holder is known as a life estate per autre vie. The holder of the life estate is known as the life tenant. The life tenant has the right to use and possession of the property for the duration of the measuring life. After the death of person who is the measuring life, the property passes to the remainderman.

A life estate may be used as an estate planning device, although many attorneys would recommend the use of a trust in its place. You should discuss with your estate planning attorney the advantages and disadvantages of using a life estate versus a trust.

Your fact pattern demonstrates one of the disadvantages of using a life estate for estate planning purposes � the life estate cannot be adjusted for changing life circumstances. In this case, your father-in-law is no longer personally able to enjoy the use and possession of the property because he is living in a nursing home. Your husband is not legally entitled to deal with the property because he has only a remainder interest in the property. If your father-in-law were not incapacitated, he could rent the property to generate income. If your father-in-law had appointed an agent under a durable power of attorney prior to his incapacity, that agent could rent the property and take other actions to manage the property. If your father-in-law does not have a durable power of attorney, then your husband may consider petitioning the court to appoint him as a conservator of his father�s property (and perhaps guardian of his person for medical care and other matters).