Estate Law FAQ
What type of estate planning services are offered by your office?
Our office offers a variety of planning services. Our attorneys have prepared everything from simple to complex Wills, revocable and irrevocable trusts, powers of attorney, and advanced medical directives, to name a few. Your first consultation will generally include a review of your family structure and those individuals who you desire to benefit from your estate, an analysis of your estate to determine if probate can be avoided, and an analysis of your estate to determine if your estate is taxable and, if so, if anything can be done to minimize the impact of those taxes.
Who gets my property if I do not have a Will or other testamentary document?
If you die without a Will, you are deemed to have died “intestate” (a fancy Latin word which means that you died without a Will). If you die intestate, Virginia law dictates who will become the owner of your property (the law of intestate succession). Sometimes, the results are not what you would expect. Did you know that if you are married, but have children who are not also your spouse’s children, then your spouse is not entitled to your entire estate under Virginia’s law of intestate succession? Clearly, this can create devastating financial impacts for your spouse if your spouse needed those funds to maintain the household after your death. Our firm can review your individual circumstances to determine who would be the recipient of your property if you decide to forgo having some type of estate planning in place.
We had Wills executed in another state. Should we have them reviewed for compliance with Virginia law?
Yes. Although many of the laws in various states are similar regarding the execution of a Will, there are just as many laws that differ from state to state. Our office can provide a free review of your Will, and if necessary, make suggestions as to how your Will can be revised to comply with Virginia law or why you should execute a new Will or some other testamentary document.
Our Wills are more than five years old. Should we have them reviewed?
Yes. It is prudent to have your Will reviewed at least every five years. Since our state legislature does change the law regarding Wills from time to time, it is logical that your Will should be reviewed by an attorney from time to time as well.
We own everything in survivorship. Do we need a Will?
Yes, out of precaution, you should have a Will. Although you have most, or all of your major assets titled in some form of survivorship with your spouse, this still will not help determine who will succeed to the ownership of your property in the case of a simultaneous death. Also, a surviving spouse may be unable to write a Will upon the death of the first spouse for reasons such as mental competency. Our clients are often surprised at the level of planning and detail we include in a simple Will for future generations. This level of planning can not be achieved with the mere use of a survivorship provision on a form.
Who should I nominate as my Executor?
We suggest that your executor be an individual who you believe will be able to handle your estate in a business-like fashion and be someone who you trust. A non-resident may act as your executor, however, they will be required to post and give surety on their bond adding extra costs to the estate. It is advisable to nominate an alternate executor.
Can I write my own Will?
You can, but we don’t suggest that you do so. Virginia law allows for “holographic” Wills, which are Wills written in the testator’s own handwriting, however, there are many ways in which the person making the Will can cause the Will to be invalid. We suggest that a Will be drafted by a lawyer and that the Will be formally executed before witnesses and a notary public. We are asked to review holographics Wills from time to time, but find that the review process can take about as much time as our firm drafting a Will for the client. In other words, there is not much of a savings, and the end result can sometimes be disastrous.
Where is the best place to keep my Will?
It is not as important where you keep your Will as long as you keep it in a safe place. If you keep your Will in a safety deposit box, Virginia law allows certain individuals to enter a bank’s safety deposit box to retrieve a Will. After the Executor is appointed, the Executor can go back and retrieve the remaining contents.
Are there any other basic planning documents that I need?
Our office suggest two documents in addition to your Will: an Advance Medical Directive and a Durable Power of Attorney. An Advance Medical Directive, also known as a “Living Will”, establishes your intent not to have your life artificially prolonged by the application of life-prolonging procedures. It also allows you to appoint a “medical” agent to make medical decisions for you in the case where you are unable to do so. A durable power of attorney allows you to appoint an agent who would take care of business and financial issues for you in the case of your incapacity. This may be an important document that would allow for the avoidance of expensive and time-consuming guardianship proceedings. A power of attorney is no longer effective upon the death of the grantor.
Does your office recommend use of a Revocable Living Trust?
Yes. A Revocable Living Trust is a simple trust that allows the person making the trust to pass assets to his beneficiaries outside of probate. As the cost of probate can be expensive, and as it generally takes approximately a year to probate even a simple estate, you do not need a large estate to make this simple trust device worthwhile.
Does your office handle other types of estate planning or administrative services?
Yes, our attorneys have been involved with more complex estate planning methods such as creating Irrevocable Life Insurance Trusts, Qualified Personal Residence Trusts, Charitable Remainder Trusts, Trusts for Minors, Special Needs Trusts, etc. We have also represented executors, administrators, and trustees in the performance of their fiduciary duties on behalf of an estate or trust.
