Services

Estate Planning

I. 55% of all adult Americans do not have a will.

II. Probate v. Non-Probate Property

• All of a decedent’s assets at death can be divided into probate and non-probate.
• Probate: property passing under the decedents will or by intestacy
• Non Probate: property passing under an instrument other than the will. Examples:
  • Joint Tenancy Property both real and personal: The decedent’s interest vanishes at death and the survivor has the whole interest relieved of the decedent.  No interest passes to the survivor.
  • Life insurance: Proceeds of a policy are paid by the insurance company to the named beneficiary in the insurance contract.
  • Contracts with payable on death provisions: The person may have a contract to distribute their property to a named beneficiary.
  • Interests in Trust: Trust assets are distributed directly by the trustee to the named beneficiary in the will and do not go through probate.
• Most property is passed at death outside of probate through non-probate transfers

III.    Reasons to Have a Will

• To Dispose of Property According To Your Wishes
• To Reduce Estate Taxes
• To Name Fiduciaries
  • An individual to manage the distribution of your estate
  • An individual or individuals to serve as the guardian of you minor children

III. Default Rules If You Don’t Have a Will

1. The Basics

   First. To the surviving spouse of the intestate, unless the intestate is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case two-thirds of such estate shall pass to all the intestate’s children and their descendants and the remaining one-third of such estate shall pass to the intestate’s surviving spouse.

   Second. If there be no surviving spouse, then the whole shall go to all the intestate’s children and their descendants.

   Third. If there be none such, then to his or her father and mother or the survivor.

   Fourth. If there be none such, then to his or her brothers and sisters, and their descendants.

   Fifth. If there be none such, then one moiety (portion) shall go to the paternal, the other to the maternal kindred, of the intestate, in the following course:Sixth. First to the grandfather and grandmother or the survivor.

   Seventh. If there be none, then to the uncles and aunts, and their descendants.

   Eighth. If there be none such, then to the great grandfathers or great grandfather, and great grandmothers or great grandmother.

   Ninth. If there be none, then to the brothers and sisters of the grandfathers and grandmothers, and their descendants.

   Tenth. And so on, in other cases, without end, passing to the nearest lineal ancestors, and the descendants of such ancestors.

   Eleventh. If there be no paternal kindred the whole shall go to the maternal kindred; and if there be no maternal kindred, the whole shall go to the paternal kindred. If there be neither maternal nor paternal kindred, the whole shall go to the kindred of the husband or wife, in the like course as if such husband or wife had died entitled to the estate.

2. What if there is Nobody?
   If an individual dies and has no living relatives and no will, their estate goes to the Commonwealth of Virginia.

3. Half-Siblings
   Virginia applies the rule that, under intestate succession among siblings, half bloods inherit half as much as whole bloods.  This is a horizontal situation involving siblings who are related through only one common parent.

4. Children Adopted by Step-Parents
   Whenever a child is adopted by the spouse of a biological parent, the child retains his inheritance rights from both biological parents as well as now, as a result of the adoption by the step-parent, gains inheritance rights from the new adopting step-parent.

5. Simultaneous Death
   One decedent must survive the other by 120 hours or else he is treated as having pre-deceased the other for purposes of inheritance or joint-tenancy.  This is a default rule – one could provide differently in his will or in the non-probate transfer.

6. Slayer Statute
   A person who is convicted of the murder of another is prohibited from taking any economic benefit from that person by deed, will, intestacy, non-probate transfer, or otherwise.  The VA statute, prohibiting a wrongdoer from benefiting applies under these circumstances:(1) Person is convicted of the crime of murder or voluntary manslaughter of the decedent; or

   (2) Person is found to be the murder by the preponderance of the evidence in a civil proceeding where the person is not available for prosecution by reason of his death by suicide or otherwise.

V. Advanced Medical Directives

An advance medical directive usually provides specific directives about the course of treatment that is to be followed by health care providers and caregivers. In some cases a living will may forbid the use of various kinds of burdensome medical treatment. It may also be used to express wishes about the use or foregoing of food and water, if supplied via tubes or other medical devices. The living will is used only if the individual has become unable to give informed consent or refusal due to incapacity. A living will can be very specific or very general. An example of a statement sometimes found in a living will is: “If I suffer an incurable, irreversible illness, disease, or condition and my attending physician determines that my condition is terminal, I direct that life-sustaining measures that would serve only to prolong my dying be withheld or discontinued.”

VI. Durable Powers of Attorney

A durable power of attorney is a document which becomes effective when you are determined by a medical professional to be incapacitated.  The document allows the person whom you designate to act on your behalf to manage your financial matters, dispose of your real and/or personal property, etc.

VII.  Conclusion – It’s an Ongoing Process

Planning your estate is not a one-shot deal.  Because so many things can change – estate tax laws, marriage, divorce, death, birth of children/grandchildren, acquisition or disposal of assets, etc. – you should review your estate plan with your attorney, investment advisor, and accountant annually or at least every other year.