WILLS, TRUSTS & PROBATE
>>Disclaimer!<<
- The information on this site is general in nature and may not apply to a specific problem.
- The forms on this site are some the author has found useful in his practice; even if the laws of Virginia are uniform, practice from one area to another (and one judge to another) varies. And forget any relationship to the laws of any other state.
- Therefore, reliance on any information posted here, and the use of ANY form (or other document on this site) is at the sole risk and responsibility of the user, and in no way creates or implies an attorney client relationship with the author, his firm, staff, family or even his dog.
- And isn't it silly that we have to cover our *(&%$ with disclaimers in case some fool wants to blame me when they screw up?
- Oh, using this site means you agree with the above.
Wills: I love the "do it yourself" wills, because I can make a whole lot more money cleaning up the mess most people make when they do it themselves. They don't make it clear what their intent is; they don't name someone to handle the estate, they try to leave a spouse out (a no-no in almost all states!) or try to leave real estate to a minor. And they forget stuff. I would rather clean up one estate than write 100 wills -- I make more money!
(By the way, one of the messiest wills I've ever read was Uncle John's -- Judge Hart -- one of the founders of this firm).
So you're not gonna make me rich -- you're going to go to a lawyer to have your will prepared. The lawyer will need to know (A) WHAT you own, (B) WHO are your "heirs-at-law" (those who would get your stuff if you didn't have a will -- a spouse and children are high on this list; if none, then parents, then brothers and sisters, etc.) and, of course, (C) WHERE you want your stuff to go. Actually, it's a little more complicated than that. Some lawyers send you a questionnaire to complete and bring in, and some take detailed notes at the interview.
We need to know WHAT you own to determine whether or not estate taxes are an issue now or may become an issue in the future. WHO are your heirs at law is important because you have to provide for your spouse whether he deserves it or not. WHERE everything goes is important because youngsters (use your own age definition here) can't handle money very well, and there are ways to protect them from themselves.
"LIVING WILLS" or
ADVANCE MEDICAL DIRECTIVES
Many people ask for a "Living Will" or a "Medical Power of Attorney". In Virginia, the technical term is actually an "Advance Medical Directive" which, if you think about it, is a more accurate name. You're stating, in advance, how much medical care you want when you can't tell anyone or answer their questions. Virginia Code 54.1-2984 (link) gives a suggested form of written advance directives, but does NOT have to be followed exactly. An advance directive may (i) direct a specific procedure or treatment to be provided, such as artificially administered hydration (water) and nutrition; (ii) direct a specific procedure or treatment to be withheld; or (iii) appoint an agent to make health care decisions if the declarant is determined to be incapable of making an informed decision. It can also include the power to make, after the declarant's death, an anatomical gift of all of the declarant's body, or any organs, tissue or eye donations in compliance with any directions of the declarant. The agent cannot refuse or fail to honor the declarant's wishes in relation to anatomical gifts or organ, tissue or eye donation.
CONTACT YOUR LAWYER IF YOU HAVE QUESTIONS REGARDING THE USE OF ANY FORM. HART & HART ATTORNEYS, LTD. MAKES THIS AVAILABLE ON THE INTERNET FOR CONVENIENCE OF THOSE WHO MIGHT NEED IT, AND ITS USE DOES NOT CREATE OR IMPLY ANY KIND OF ATTORNEY-CLIENT RELATIONSHIP.
If a parent or spouse is in the hospital, and there's no advance directive, there's a provision in Virginia law that specifies who is the surrogate (substitute) for that person. 54.1-2986 (link)
Probate:
A few years ago I had a client email me with questions about handling an estate; following is an edited version of that email.
Probate and administration of an estate has two main divisions:
The general rule in Virginia is that fiduciaries are allowed to receive a fee of 5% (five percent) of the assets they handle, paid before distribution to the heirs. Fiduciary fees are subject to income taxes and the fiduciary should file a 1099 on themselves for this. However, in big estates (over $500,000) the fiduciary gets a smaller percentage as fee.
Where there is no will, the fiduciary (administrator) DOES NOT repeat NOT have power to sell the real estate. And when the heirs sell it, the money may be held in escrow (at interest) for one year after the date of "qualification", then distributed to them. IF there is a will, then the way the will is worded determines the power the fiduciary has; GET A LAWYER.
The fiduciary DOES have the power to liquidate and distribute everything else.
Steps, in brief and in general, for handling an estate are:
As part of the probate/administration process, you'll need a good list of what is owned and, in many cases, what is owed. There are also special responsibilities that go along with it.
(By the way, one of the messiest wills I've ever read was Uncle John's -- Judge Hart -- one of the founders of this firm).
So you're not gonna make me rich -- you're going to go to a lawyer to have your will prepared. The lawyer will need to know (A) WHAT you own, (B) WHO are your "heirs-at-law" (those who would get your stuff if you didn't have a will -- a spouse and children are high on this list; if none, then parents, then brothers and sisters, etc.) and, of course, (C) WHERE you want your stuff to go. Actually, it's a little more complicated than that. Some lawyers send you a questionnaire to complete and bring in, and some take detailed notes at the interview.
We need to know WHAT you own to determine whether or not estate taxes are an issue now or may become an issue in the future. WHO are your heirs at law is important because you have to provide for your spouse whether he deserves it or not. WHERE everything goes is important because youngsters (use your own age definition here) can't handle money very well, and there are ways to protect them from themselves.
"LIVING WILLS" or
ADVANCE MEDICAL DIRECTIVES
Many people ask for a "Living Will" or a "Medical Power of Attorney". In Virginia, the technical term is actually an "Advance Medical Directive" which, if you think about it, is a more accurate name. You're stating, in advance, how much medical care you want when you can't tell anyone or answer their questions. Virginia Code 54.1-2984 (link) gives a suggested form of written advance directives, but does NOT have to be followed exactly. An advance directive may (i) direct a specific procedure or treatment to be provided, such as artificially administered hydration (water) and nutrition; (ii) direct a specific procedure or treatment to be withheld; or (iii) appoint an agent to make health care decisions if the declarant is determined to be incapable of making an informed decision. It can also include the power to make, after the declarant's death, an anatomical gift of all of the declarant's body, or any organs, tissue or eye donations in compliance with any directions of the declarant. The agent cannot refuse or fail to honor the declarant's wishes in relation to anatomical gifts or organ, tissue or eye donation.
CONTACT YOUR LAWYER IF YOU HAVE QUESTIONS REGARDING THE USE OF ANY FORM. HART & HART ATTORNEYS, LTD. MAKES THIS AVAILABLE ON THE INTERNET FOR CONVENIENCE OF THOSE WHO MIGHT NEED IT, AND ITS USE DOES NOT CREATE OR IMPLY ANY KIND OF ATTORNEY-CLIENT RELATIONSHIP.
If a parent or spouse is in the hospital, and there's no advance directive, there's a provision in Virginia law that specifies who is the surrogate (substitute) for that person. 54.1-2986 (link)
Probate:
A few years ago I had a client email me with questions about handling an estate; following is an edited version of that email.
Probate and administration of an estate has two main divisions:
- Probate means proving the death of the individual and presentation of a will, if any.
- Administration is where the Court appoints a person to administer the estate and distribute it according to the laws of Virginia. The date someone is appointed and jumps through the various hoops is the "Date of Qualification"
The general rule in Virginia is that fiduciaries are allowed to receive a fee of 5% (five percent) of the assets they handle, paid before distribution to the heirs. Fiduciary fees are subject to income taxes and the fiduciary should file a 1099 on themselves for this. However, in big estates (over $500,000) the fiduciary gets a smaller percentage as fee.
Where there is no will, the fiduciary (administrator) DOES NOT repeat NOT have power to sell the real estate. And when the heirs sell it, the money may be held in escrow (at interest) for one year after the date of "qualification", then distributed to them. IF there is a will, then the way the will is worded determines the power the fiduciary has; GET A LAWYER.
The fiduciary DOES have the power to liquidate and distribute everything else.
Steps, in brief and in general, for handling an estate are:
- Qualify and post (estate surety) bond. Change utilities to heirs (since estate can't sell, heirs should be paying utilities)
- Obtain an Estate Tax ID Number from IRS really easy to do at irs.gov
- Open the Estate bank account
- Notify all heirs of the pending estate (Court provided form)
- Inventory (list) the assets and file an inventory with the Court
- Liquidate the assets (give personal property to heirs -- keeping track of values of items given -- GET RECEIPTS)
- Determine the bills owed
- If sufficient funds pay the bills
- File final income tax return for decedent
- File estate tax return if required
- File estate income tax return (a different animal from the estate tax return) if needed.
- Approximately one year from death, distribute funds to heirs.
- File a DETAILED accounting with the Court.
As part of the probate/administration process, you'll need a good list of what is owned and, in many cases, what is owed. There are also special responsibilities that go along with it.
