Virginia Estate Planning Attorneys

Wills

Fairfax Wills Attorney

A major part of your estate plan involves making provision for the future through the use of wills, trusts and powers of attorney. The Estate Planning Division of Hale Ball Carlson Baumgartner Murphy, PLC has had extensive experience in determining when a trust will best help your planning needs. A will is the centerpiece of any estate plan. Wills can be complex documents, and a basic understanding of the terminology of a trust is helpful in understanding the recommendations that are made by Hale Ball Carlson Baumgartner Murphy, PLC.

Wills

When is the right time to make a will? No one wants to think of death. But when you think of others, those you love, those you care for or those for whom you want to provide or leave something to, it is time to prepare a will. Wills are not just for the old, but they are for any person who owns assets and wants to provide specific instructions for how, or to whom, those assets should be given, who should be the guardian for your young children or who should manage the assets for distribution to your beneficiaries if you pass away. If you don't have a will, then now is a good time to give it serious thought.

If you have no will then your assets will pass to your "next of kin" according to state law and when necessary by interpretation of the courts.

The will is often the foundation of your estate plan. A will may be used to simply transfer your assets to beneficiaries or it may be part of a more detailed and comprehensive estate plan to create trusts (a trust created in a will is called a Testamentary trust) or to fund other trusts (a will distributing assets to existing living trusts is called a pour-over will).

What is a Will?

A will is a written document containing your instructions and wishes as to how your property and assets are to be distributed after your death. Alternatively, a will can be viewed as the legal declaration of a person's mind as to the manner in which he would have his property or estate disposed of after his death.

A will should not only be considered by those who believe they have reached the age where death is not far away or those that have lots of money. It is important for everyone to have a written document which conforms to state laws to make sure your intent is followed and able to be enforced by your executor (the person sworn by the court to administer your will for distribution of your assets is the executor).

The written statements of your wishes and desires should be signed in compliance with the formalities required by law. In your will the people, institutions or charities you want to benefit (the people you want to benefit are called beneficiaries).

Your property is transferred by your will. In Virginia it is important to provide your executor with the powers to distribute your real property (land and house). Your property may include everything you own, such as your home, land, vehicles, bank accounts, furniture, boat, investments such as shares, personal items around the house and family heirlooms, and so on. Some investment accounts or similar life insurance policies may allow for unique distribution strategies or you may by default allow your will to convey such assets. Identifying your will as the beneficiary for certain investments may not always result in the best tax planning and should be coordinated by our estate planning attorneys. A will is one estate planning document to make sure your assets will be distributed according to your wishes after your death.

What is a Valid Will?

A valid will is a will that is accepted by the court and put into effect by the court granting what is known as probate. Probate is approval or acceptance by the court of how your assets are to be dealt with and the process or their administration before the Commissioner of Accounts as the representative of the Virginia courts.

A valid will must have the following features:

  • It must be in writing and make a valid disposition of the property through certainty of the subject and object - handwritten, typed or printed.
  • It must be signed with your signature at the end of the document.
  • It must be witnessed by at least two other people present at the time of signing.
  • In Virginia we also include a Self-Proving Certificate to permit proof of the will at probate without a requirement that the witnesses be accounted for or be required to provide additional proof.
  • The will for presentation to probate must be the original. To probate a copy a court order must be obtained to admit the copy to probate; court approval of a copy is not guaranteed and its admission will be dependent upon the facts.

The proper drafting of your will following the legal formalities ensures that your will will be enforceable and available for probate is important. The court has discretion to grant probate (probate is confirmation that the will is valid and accepted). When the court exercises this discretion, it has to be satisfied that the document sets out clearly how you wanted your assets to be allocated or distributed.

About Completing a Will

The successful completion of your will should not wait until you are old and ready to die. The process can be straight forward and educational. Please contact one of our estate planning attorneys to review the process and objectives with you.

Your will can serve as the basis for your lifetime planning and your financial management. Included in a will can be trusts and special provisions for the distribution of your assets, at the time your pass away or in the future after your death. If your beneficiaries are minors, you can make special provisions for their future support and education. By including a trust for your minor children in your will (often referred to as a testamentary trust) you have elected to control their future distributions beyond age eighteen (18) and the trustee who will be financial responsible to care for your children. Many people make this election rather than allowing state law and the Uniform Transfers to Minors Act (UTMA) to control your money and distributions. You also will want to identify to the courts who you select to be the guardians of the persons of your children.

Why Make a Will?

When a person in Virginia dies without making a will then the laws of the Commonwealth of Virginia control the distribution of the person's assets. If you die without a will the term is; you have died "intestate".

What could happen without a will?

  • If you die without spouse or children, but are survived by your parents, then your parents will generally receive all the assets of your estate.
  • If you die and are survived by a spouse, then the whole of your estate will generally pass to your spouse.
  • If you die and are survived by a spouse and children of the same marriage the estate will go to the surviving spouse.
  • If you die and are survived by a spouse and children of a prior marriage the estate will be divided between your spouse and children, 1/3 to your spouse and 2/3 to your children.
  • If you die without spouse, children or parents, but are survived by brothers and sisters, then your estate will be divided equally amongst those brothers and sisters and the children of your deceased siblings.

What are the benefits of having a will?

  • To protect your loved ones or your charities.
  • Controlling the distribution of the assets you have worked to accumulate.
  • Smooth transfer of assets.
  • Having a will enables your assets to be transferred smoothly on your death.
  • To secure your children's future.
  • If you have children (under adult age), you should nominate guardians and make arrangements for their upkeep and education.
  • If you are currently in your second marriage, you need a will to protect the members of your new family.
  • The foundation of your lifetime financial planning and estate planning.
Hale Ball Carlson Baumgartner Murphy