A Will is a signed written document in which a person directs what is to be done with his or her property after death. It must be written and signed in a particular way, as required by the laws of the state in which the person signing resides. The person who makes the Will is called a testator (male) or testatrix (female). In Virginia, wills are witnessed by two witnesses. In addition, a notarized self-proving affidavit is executed at the time the Will is signed.
A properly executed Will is valid unless changes occur which affect the Will or the Will is revoked before death. Changes which affect a Will include events such as the birth of a child born to the testator, divorce or marriage of the testator or changes in the tax law after the Will is written and signed.
A person may change a Will as often as desired. However, any changes to the Will must be made with the same care and formality as is required for the execution of the Will. A "codicil" is the legal document used to revise a Will.
Anyone who is 18 years of age or older may make a Will. He or she also must be of sound mind and free of any improper or undue influence by another person when the Will is made.
There is no legal requirement that you have a Will. But if you should die without one (called dying "intestate"), any property not held in joint ownership with a right of survivorship or passing through your designation of a beneficiary (for example life insurance) will pass in accordance with a plan specified in state law. This distribution may not be in accordance with your desires.
In Virginia, if the intestate decedent is survived by a spouse and children, the spouse will receive all of the decedent's real and personal property unless the decedent has children who are not related to the surviving spouse. If one or more of the decedent's children is by a previous marriage, the spouse will receive only one-third of the decedent's real and personal property and the child(ren) will receive two-thirds. If the child is under age eighteen (18), a court proceeding would be necessary to be able to spend his or her share on the child's needs. If a Will is made, these problems and the additional expenses they entail can be avoided.
There are other reasons for having a Will. You can direct how you want your property divided after your death. You may name the person you want to handle your estate. You can decrease the expenses of administering your estate. You can reduce or avoid estate taxes. You may provide for a trust for the support and education of your minor children without the necessity of court proceedings. You may select a guardian for your minor children. You may eliminate expensive court proceedings to dispose of real estate.
An alternative estate planning device is a living trust. The living trust frequently is suggested as means of avoiding probate. It also can be used for estate and probate tax minimization or avoidance and as a means of providing for support for minor, disabled or immature children and grandchildren.
Though often promoted as the cure-all for estate and financial planning, living trusts, like any planning device, have advantages and disadvantages. There are numerous situations in which the living trust is desirable or even necessary; however, there also are instances where the living trust is not only inappropriate but detrimental.
Living trusts are a means of avoiding probate and its associated costs. However, in Virginia, where the cost of probate is relatively reasonable, such a savings may not warrant the costs associated with establishing a trust and transferring assets to it. Moreover, in Virginia, if an estate is probated, creditors can be barred after one year from making future claims against the executor of the estate if the executor follows certain legal procedures. This can avoid unpleasant surprises to the executor in the future if an unknown creditor should make a claim against the estate assets. The creditor would have to try to collect directly from the beneficiaries of the estate. This protection is not available to the trustee when assets are distributed through a trust.
Where the goal is to establish a trust which will continue on after the death of the grantor, a living trust, as opposed to a testamentary trust has certain economic and practical advantages. A testamentary trust, that is a trust established in a Will, remains under the jurisdiction of the court. Unless waived in the Will, in Virginia, each year an annual accounting must be submitted to the Commissioner of Accounts and fees based on the value of the trust assets must be paid. A living trust is not subject to the jurisdiction of the courts unless someone files an action against it.
In addition, where the goal is to insulate assets from beneficiaries' possible creditors, a properly designed trust may be the appropriate device.
Our estate planning attorneys will meet with you to discuss the specifics of your estate. They will considered the type and amount of your assets, and your goals, and advise you on the best document to meet your needs.