Estate Planning FAQs
Estate planning documents consist of the memorialization of one’s intent for the care of one’s person, the use of one’s assets while that person is living, and the distribution of such assets upon passing – within the protections and legal parameters set forth within the Code of Virginia.
Estate planning services include planning for the well-being of an individual, and the use of and distribution of their assets through documents such as: (1) The drafting of documents like trusts, wills, powers of attorney, and advance medical directives. (2) Petitioning the Court for Guardianship and Conservatorship. (3) Providing counsel regarding the process of Probate. (4) Acting in the role of a fiduciary – an executor in the case of a Last Will and Testament, an Estate Administrator in an Intestate matter, a Trustee for a Trust, and an Agent under a power of attorney or advance medical directive. And, (5) Succession planning, which may be accomplished through the establishment of business entities, and the writing of revocable and irrevocable (asset protection) trusts.
A revocable trust is a trust established during your lifetime to manage your assets during life, and to direct the distribution of those assets upon your death. A revocable trust is a vehicle used when one wants to avoid probate, maintain assets in trust for the benefit of others, and strategize for effective tax planning.
If you have real property in a jurisdiction outside of Virginia, want to avoid probate, want to “manage assets” in trust after death, then a revocable trust may be a strong consideration.
What assets should be funded/transferred into my revocable trust? Estate Law Center | Trusts | FAQ #23
Funding real property, tangible personal property, and some intangible personal property are for consideration. There are certain intangible personal property items that should not be funded into a revocable trust.
Yes, you can maintain your assets within a trust for the use and maintenance of those within your bloodline.
You specify what amounts, if any, that should be disbursed to your children. Some individuals want to leave different percentages to their children, different parcels of real property, or specific amounts of cash.
You are not required to leave any assets to a child; however, very careful language addressing this matter should be included in your document.
You may be the trustee of your revocable trust, and should name trustee individuals or entities to be your successor trustees. If you do not know someone you trust to name as a successor trustee, you may consider an attorney or an entity that provided such services. Visit the Estate Law Center’s Trust FAQ page to learn more.
Everyone should have a will in place when they pass. Even if you have made arrangements for your assets to be transferred outside of probate, you should have a will in place as a “safety net,” so that there is no surprise on your passing, which may cause such asset to pass intestate.
What if I don’t have a will in place when I die? Do I need a will? | Estate Law Center | Wills | FAQ #122
If you die intestate, meaning without a will, your assets will pass per the laws of descent and distribution set forth in the Code of Virginia. This means that it is possible that a person would be a recipient of your assets to whom you had no intention of leaving such a legacy.
This is often a very hard conversation for a client to have. You are not required to leave any assets to a child; however, very careful language addressing this matter should be included in your document.
Yes, testamentary trusts, trusts established through a will, can affect this intent; however, if one wants to maintain assets in a trust for the use of another, consider using a revocable trust to accomplish this intent. Visit the Estate Law Center’s Wills FAQ page to learn more.
Power of Attorney FAQs
Yes, everyone should have a power of attorney in place. Think of a power of attorney has having two main pillars: the first is the care of a person and the maintenance of his quality of life, the second is providing help with financial and investment matters. Those two pillars incorporate many “sub areas” of authorities, or areas that you select and give another the legal authority to help you, and if need be, make decisions on your behalf.
A power of attorney gives another person the authority to make decisions about the care of your person, as well as your finances. The “safeguard” is that those decisions while you have the capacity to do so, are supposed to be at your directive and in your best interests.
Do I need a power of attorney if I have made my adult-child joint owner with right of survivorship on my bank accounts or wealth management? Estate Law Center | POA | FAQ #223
Talk with an estate planning attorney about the risks involved when you make another the joint owner on your bank accounts. Instead of selecting the option of joint ownership on your bank or wealth management accounts, consider using the signing and decision-making authority granted under a power of attorney.
Powers of attorney can be effective upon signing, or upon incapacity. Powers of attorney that are effective upon signing are encouraged, though the ever-present caution is to make sure you trust who you name as your agent. When a power of attorney is effective upon incapacity that may present a challenge by third party entities such as financial institutions, as to acceptance.
A power of attorney “dies at death.” A power of attorney should be effective upon signing (though one can choose to make it effective upon death) and good through incapacitation. A power of attorney is no longer effective when one dies, that point a different fiduciary takes over to settle the decedent’s estate, whether it be a trustee of a trust, an executor of a will, or an estate administrator if the decedent passed intestate.
Anyone may be named your agent. Please make sure you trust the agent you name, that he or she is one who will always have your best interests at heart. When establishing a power of attorney, the Estate law Center encourages clients to name a primary agent and then successor agents who can take on the fiduciary role should your primary agent be unable or unwilling to serve in such a capacity.
Advance Medical Directive
Probably. In general, living wills may not address the scope of your medical wishes if you are ill and need medical attention, as well as end-of-life, as well as naming an agent.
In addition to naming an agent who can legally make medical decisions and advocate on your behalf, an advance medical directive memorializes what you consider acceptable medical care in the event that you are ill or in an accident and are unable to make decisions for your medical care and treatment. The same document also addresses end-of-life wishes; allowing you to stipulate whether you want your life to be sustained in the event that certain pre-conditions are present, such as a terminal illness and you are in a persistent vegetative state.
Name a primary, and as many successor agents as you trust. When selecting an agent, consider whether during a time of possible grief they will be able to be strong enough to follow the wishes your have set forth in your advance medical directive.
Advance medical directives last until death or until you revoke them. You can limit the timeframe of an advance medical directive; however, discuss the risks of such an action.