Senior Swag — Understanding Roles in Estate Planning

By : Attorney Katherine S. Breckenridge

Published November 8, 2018 – INSIDENOVA / Culpeper Times

Probate & Administration : Understanding Roles in Estate Planning

“Senior swag!” Don’t judge – stay with me as I expand on the beauty behind the concept.

Recently, I was listening to a sermon given by Steven Furtick, pastor of Elevation Church, and as he was referring to Paul’s letter written to the Philippians while he was in prison, he stated that Paul had “senior swag.”

Though Pastor Furtick acknowledged that Paul was in his later years, he wasn’t referring to Paul having many years on his life. What he was sharing was how Paul had reached a point in life where he recognized that his faith was not dependent on his situation and that he was able to move forward and make progress, in spite of the opposition.

The wisdom attributed to Paul certainly speaks of one who embodies a commitment to purpose, and an attitude of thankfulness. Having a spirit of thankfulness is a concept one may encounter most around Thanksgiving; however, the precept rings true during all seasons.

It is my hope that no matter the age, each of us can claim an expanded version of some “senior swag” – the ability to realize one’s purpose, the drive to achieve such a calling, and the thankfulness for the surrounding elements that support the purpose.

One may wonder how “senior swag” and estate planning have any correlation at all, and how having gratitude for anything related to estate planning may even be possible. As I thought on that question, the list of possibilities started out as a few, and then began to expand.

To begin, the only reason that I, and I venture out on a limb to say most estate planning attorneys, are able to provide quality service to clients is because of a wide array of people and elements in place that provide wisdom and structure.

I am thankful for the following that reveal the true intricacies that make estate planning even possible.

The Code of Virginia (the Code), that is well-designed to protect the process of estate planning, and those involved in the effective execution. The Code addresses diverse matters such as the requirements for the establishment of trusts, last will and testaments, powers of attorney, and advance medical directives, as well as what occurs when an individual does not take the time to put in place such documents. The Code sets forth the duties and requirements of fiduciaries, those who take on roles such as a trustee of a trust, a testator of a will, an agent under a power of attorney, or a guardian and conservator of an incapacitated adult. If parameters for either of these were not in place it is easy to envision the chaos that may ensue, but for those well-thought out statutes.

The commissioners of accounts, who are responsible for overseeing the settlement and distribution of estates through the probate process, whether by a last will and testament or intestate. As set forth in §64.2-1200 of the Code, “The judges of each circuit court shall appoint as many commissioners of accounts as may be necessary to carry out the duties of that office. The commissioner of accounts shall have general supervision of all fiduciaries admitted to qualify in the court or before the clerk of the circuit court and shall make all ex parte settlements of the fiduciaries’ accounts.” We are so very fortunate within Culpeper and the surrounding counties to have commissioners of accounts who have a wealth of knowledge and are willing to share their wisdom, helping the settlement of estates to run as smoothly as possible.

The clerks of the circuit court, who are responsible for handling the probate of the last will and testament – reviewing and approving the last will and testament of the decedent, appointing the executor or estate administrator of the estate – when the decedent died intestate, as well as preparing and receiving documentation related to the settlement of an estate. As was stated about the commissioner of accounts, the same is true with those who hold the position of clerk as well as those who work with the clerk, both within Culpeper and the surrounding counties; those of us who have estate matters benefit from their wealth of experience and dedication to the process that is set forth in the Code.

The attorneys who are skilled at being a guardian ad litem. A guardian ad litem is appointed by the court and is a neutral party, acting in the best interests of the senior adult. After interviewing appropriate parties and evaluating medical information, living conditions, and physical and cognitive abilities, the guardian ad litem provides a written opinion to the court on whether the senior adult needs assistance and protection above what is currently in place. Such an opinion helps the court decide whether the senior adult should be deemed a ward of the Commonwealth and have a guardian appointed. The attorneys who spend their time on matters such as this have a heart for the older adult generation, and are gifted with the ability to put a senior adult at ease, and evaluate situations – many which are extremely layered with medical, financial, and family issues.

The financial advisors who provide advice on risk averse investments so that a client’s money can last as long as possible for use towards the client’s quality of life, care, and medical needs. These same advisors are adept at helping to diversify funds if the estate is subject to the prudent investor rule, which unless waived, requires diversification upon the fiduciary taking on his or her position. They are also skilled when transferring funds into trusts, or making distributions from estates.

The certified public accountants (CPA) who provide essential tax advice from the very establishment of an estate – the writing of the original documents, to the settlement of an estate when a person passes away. The input of a CPA helps raise the awareness of an estate planning attorney of tax considerations that may apply to a specific client’s portfolio. The CPA’s skills are also needed in the preparation of the filing of the accountings related to probate estates, and the final tax filings of a decedent.

Estate planning, as well as estate and elder law matters address some of life’s most sensitive issues. The planning for one’s care and support while on this earth, and the consideration of dispositive terms regarding one’s assets following death, are not easy subject matters for most individuals.

I am frequently amazed at the underlying strength, courage, and faith of so many as they face life’s challenges as set before them. As each requires a considerable amount of time and care, the wisdom and expertise of those who hold the positions previously noted, are essential to me as an estate planning attorney when I am providing estate or probate services to a client. And, I claim that element of “senior swag” — that I am so very thankful for the skills and dedication of others, which allows me to deliver on my purpose.