Whether you are young and growing your family or well into your retirement, it is never too early or late to consider your estate plan. Our estate attorneys are here to guide you through the estate planning and administration process. It is difficult to think about leaving your family and what you want to happen when you are gone. However, there are important conversations you need to have and steps you need to take. The more prepared you are for the inevitable, the easier it will be on your family. Estate planning may not ease your loved one’s grief, but it will mitigate any practical, financial, and legal difficulties that could arise after your passing.
Estate Planning in Virginia
Our estate planning lawyers at Copenhaver, Ellett & Derrico understand how difficult it is to discuss these topics. It is hard to consider how much medical intervention you want toward the end of your life or what you should leave one child compared to another. We are here to guide you through this process with compassion. The better informed you are about Virginia law and your options, the easier it is to make the right decisions for you and your family.
Some of the most vital aspects of an estate plan, include:
- Formalizing your advance medical directives, also known as a living will
- Determining appropriate powers of attorney
- Choosing a personal representative/executor of estate
- Choosing a guardian for minor children
- Drafting your will
- Utilizing avenues to avoid probate, such as jointly owned property
- Determining the tax consequences of your intended estate plan
These are the basics of a comprehensive estate plan. We can guide you through these broad strokes as well as the more detailed aspects of implementing a plan that will benefit you and your family when the time comes.
Virginia Estate Law
Title 64.2 of the Code of Virginia encompasses state law regarding wills, decedents’ estates, trusts, fiduciaries, powers of attorney, guardianship of minors and incapacitated persons, probate, and non-probate transfers. Our estate attorneys are well versed in this area of law, as well as other statutes that may influence your estate planning or the probate process.
Some of the most important laws that impact your estate plan include:
- Wills (§64.2-400 – 409) – These ten statutes indicate who can make a will and the formalities you must adhere to in order for the will to be valid.
- The Construction and Effect of Wills (§64.2-414 – 432) – These statutes dictate how a court will interpret your will. They also cover the rights of certain children and spouses who are omitted from the will, which may be relevant to you if you wish to intentionally leave a child out of your will.
- Probate (§64.2-443 – 454) – These statutes dictate the overall probate process.
- Trusts (§64.2-700 – 1108) – This contains the Uniform Trust Code, the Uniform Custodial Trust Act, the Uniform Principal and Income Act, and the Uniform Prudent Management of Institutional Funds Act. One or more of these laws may be relevant to you if you wish to create one or more trusts to avoid probate and benefit your family.
- Powers of Attorney (§64.2-1600 – 1642) – The Uniform Power of Attorney Act determines the proper execution and validity of a power of attorney.
Advance Medical Directives
By formalizing an advance directive for healthcare, known as a living will, you do two things. You may provide instructions for the health care services that should or should not be provided when you terminally ill or unresponsive. You may wish to be given all or some life-sustaining measures, or you may wish for your life to not be prolonged beyond a certain point. It is up to you to decide your future medical care and to speak with your family about what you believe is right. You also may appoint someone to be your health care agent to ensure your wishes are followed or to make certain decisions regarding your care.
Powers of Attorney
To be able to draft a valid power of attorney, you must be at least 18 years old and of sound mind. With those basic qualifications, you are entitled to draft a legal document that appoints another person to act on your behalf in certain situations. You may have heard about a durable power of attorney. This is a document that becomes effective once you sign it and it remains in effect even if you become incapacitated. All powers of attorney are durable in Virginia unless the document expressly states otherwise.
A power of attorney does not have to give full power over all aspects of your life to one person. Many people choose to divide power of attorney into different aspects of life, such as medical care, personal decisions, financial decisions, and business decisions. You have the right to give different types of power of attorney to different individuals. Although, keep in mind that many of these decisions will overlap or conflict, which means your chosen agents must be able to communicate and work together.
Having powers of attorney in place can save you and other family members a great deal of time, stress, and money in the future. If something were to happen to you without a power of attorney in place, and you became incapacitated, your loved ones may have to go to court to have someone appoints as your legal guardian, which can be an expensive process at the worst time emotionally.
Your last will and testament is a legal document that dictates how the assets within your estate are handled upon your passing. It is an essential piece of your estate plan, and it should be drafted with care. To write a valid will, you must be at least 18 years old, or an emancipated minor, and mentally competent. Your will must be in writing and you must sign it in front of two competent witnesses. If your will is handwritten, and not typed, then you must sign it in front of two competent and disinterested witnesses.
It is important to work with an experienced estate planning attorney to ensure your final will accurately conveys your wishes. Seemingly minor mistakes, whether it is an overly broad provision, poor wording choice, or an over-looked issue, could lead to familial arguments and probate litigation.
At Copenhaver, Ellet & Derrico, we often run into the misconception that you can wait to draft a will until you are much older. The truth is, once you own property or have a child, you should have a will. When minor children are involved, a will ensures that your children remain with their other parent after you pass or they are given to a specified guardian. By having a will, you ensure your children are always taken care of by someone you loved and trusted, and that you approved.
Some people choose to utilize revocable living trusts and irrevocable trusts to pass assets onto their family. At Copenhaver, Ellett & Derrico, we are highly experienced in drafting the appropriate trust for your situation and ensuring it will work the way you wish upon or after your passing.
There are numerous types of trusts available in Virginia, each offering their own advantages and disadvantages. A living trust is one that places property into the trust during your life. This is opposed to a testamentary trust that is created within your will and formed at the time of your death. Most living trusts are revocable, which means you have the right to change their terms during your life. However, there are also irrevocable trusts, which you cannot change the terms of.
An estate lawyer can also discuss with you more specific types of trusts, such as:
- Child’s Trust
- Spendthrift Trust
- Discretionary Trust
- Pet Trusts
- Disability Trust
- Charitable Trust
- Charitable Remained Trust
- Education Trust
Non-Probate Property and Transfers
Various types of trusts are used to ensure certain assets are not subject to probate. This allows the beneficiaries of the trust to have access to its benefits right away, without court oversight. However, a trust is not the only type of non-probate property. Property you jointly own with one or more other individuals automatically passes to the other owners and avoids probate. Bank and other financial accounts that are payable upon death or transfer on death (POD/TOD) skip probate. Also, if you have life insurance, investment accounts, and retirement accounts with someone listed as a beneficiary, those accounts may not have to go through probate before being distributed to the beneficiaries.
If you wish to avoid probate as much as possible, easing the burden on your family, speak with an estate lawyer to discuss trusts and these other avenues.
Estate Administration and the Probate Process
At Copenhaver, Ellett & Derrico, we do more than help our clients in life. We also offer estate administration services to guide you through the financial and legal processes that follow a loved one’s death. If you are selected by your relative or the court to be the executor of the state, you face a challenging task.
During the probate process, it is up to you to create an accurate inventory of the estate’s assets and debts, pay the outstanding debts, pay the final taxes, and distribute the remaining assets to beneficiaries. We are here to advise you during this time, helping you complete your duties efficiently. We are also well-versed in the potential complications and nuances of the probate process and can represent you in any issues that arise, including probate litigation.
When estate planning, it is important to take your future tax liability into consideration. In addition to your final federal taxes and state income tax, Virginia requires a probate tax on estates worth $15,000 or more. As of 2018, the probate tax rate is 10 cents per $100. Our estate lawyers can help you prepare to mitigate your final tax obligations.
Additionally, the funds and other assets you leave friends and family can have tax ramifications for them. If you want to leave a significant asset to someone, we will review the potential tax liability your loved one would face. We will also look at ways to mitigate your beneficiaries’ tax liabilities to ensure your gift does not become a burden.
Our estate planning attorneys work with our clients to create clear, direct, and valid estate plans. Though we cannot prevent all family disagreements, we do everything in our power to ensure your family does not have to deal with contentious estate litigation.
We also recognize there are many situations in which litigation is necessary and the best course of action. You may have evidence that the will admitted to probate is invalid for a particular reason, such as your loved was subjected to undue influence or was mentally incompetent at the time the will was signed. We are experienced in representing beneficiaries contesting a will and family members defending the validity of wills.
We also represent individuals in probate litigation intended to determine and verify who are beneficiaries of a decedent’s will or heirs under Virginia law. We represent beneficiaries and heirs contesting their shares of a decedent’s estate, including spouses or children who were left out of a will.
If you believe the personal representative of the estate is not fulfilling their duties, has misappropriated funds, has committed fraud, or did not provide an accurate accounting, we can represent you in bringing an action against the executor.
Contact an Estate Attorney at Copenhaver, Ellett & Derrico Today
At Copenhaver, Ellett & Derrico, we are always here to help. Do not hesitate to reach out to use and schedule a confidential consultation at our office in Roanoke, Virginia. We are here to listen to your concerns and answers your questions regarding estate planning. When you are ready, we will get started on creating the best plan for you and your family.