Estate Planning

You might not think you have “an estate.” But you do.

“Estate” is just another word for all the things you own. Whether you’re 8 or 88, if you have a bicycle or a Bugatti, you have an estate. And while it’s true that the value of an estate is an important part of most decisions about how to plan for the changes we all face, it makes sense to understand your options, even if you think your estate is modest, and especially if your estate has flourished.

This is our favorite thing: to help people understand what their options are and to offer them choices about how to think of their future, and the futures of the people and values they care most about. We call it “life and legacy planning.” We use a different name for what we do because what we do is different that what you may have come to expect, and because we know that you have interests and values that extend beyond your net worth.

Legacy Planning Process – sets us apart

First of all, we want to get to know you in person, and help you understand why we do what we do. This is mainly for us because we like people and want to help them when we can. This is why we meet with you at first without any obligation. In this first meeting, we will get to know each other a little bit. By the time we actually meet, you will already have provided us with a fair amount of information about your questions and concerns, as well as about the composition and extent of your estate. We actually take time before the first meeting to review this information so that we can spend our time in the meeting well, focusing more on you and your concerns than on the details of your property.

The next important item on our first agenda is explaining what your options are. These range from leaving things alone to making sweeping changes in the way you hold title to your property. We discuss the legal instruments you can use to make transitions in your life work the way you want them to. These include wills, trusts, powers of attorney, advance medical directives, living wills, HIPAA waivers, and sometimes others.

If, after discussing it with us, you decide you want to change the way you are planning, we will describe one or more options which you might want to choose, whether or not we decide to work together. This information is designed to help you understand what we think are your best options, and leaves to you the decision whether you want to pursue them at all, or with us, or perhaps with another lawyer who is a better fit. The point, of course, is that you are informed and empowered to take the steps you wish with the attorney you choose. Then, if we do decide to move forward, our legacy planning process will involve three additional meetings, and possibly a fourth. These are the Design Meeting, in which the details of your estate plan are arranged; the Signing Meeting, which is when your documents are formally executed; and a Delivery Meeting, when we deliver your original bound documents to you, and engage you in your first Legacy Interview. Finally, the optional Family Meeting is one we can organize and host (virtually, if convenient) which is designed to help your loved ones understand that you have done this planning, who is on your team of advisors, and that there are roles to be played by others when incapacity or death makes planning ahead so important.

You’ve probably never heard of a Legacy Interview, or a Family Meeting in this context. That is because the way we do life and legacy planning is really different, and we think a lot better, than what you may have become accustomed to. We will explain this all in plenty of detail, but let’s focus for a moment on the parts that you have heard about.

Wills

In Virginia, there are laws which determine what will happen to your property and personal effects when you die. This is called the law of intestate succession. That is just a formal way of saying that certain relatives of yours have rights after you die to what belonged to you. A will is a document that you can make which changes those rights, and can also change the process of distributing your property (this process is called “probate”) to make it easier and less expensive for the people you decide to leave it to.

Many people we see understand that there are costs and that there is some inconvenience associated with probate. We will spend some time talking about that with you and answering your questions about it. For example, we will describe the process called “small estate administration” which applies to Virginia estates of $50,000.00 or less. We will help you understand the burdens and benefits of probate here in Virginia. And we will explain how a will is a wonderful thing to have, whether your estate is small or huge, and whether your estate planning needs are few or very sophisticated.

Of course, we will probably offer to make a current will for you if you do not have one.

Trusts

While we think that everyone should have a will, there are some people who will benefit by considering trusts, too.

We will discuss this option with you if we think, based on our discussion of your concerns and our review of your assets, that you might be better served by an estate plan that makes use of them. We are not in the habit of recommending them to everyone. But trusts can be a smart way to plan and to create a vehicle for the transition of your estate during incapacity, whether short-term or long, or after death. This is, in part, because a trust functions while you are still alive, unlike a will, which only operates at all after death.

Trusts are an important part of our work, and they can be designed to accomplish a wide variety of objectives. If you are a candidate for a trust-based estate plan, we will recommend it to you in our first meeting, and then design a trust, or series of trusts, which meet your particular needs, always making sure that you understand what they do, and how best to put them to use. Then, after your plan is in place, we will continue to help you align your assets with your trust so that the planning you have done actually works when it’s needed.

Durable Powers of Attorney

A durable power of attorney is a good way to provide stability in the event of our incapacity. This is because a will only works after death, and many of us, perhaps as many as half, will become incapacitated at some point in our lifetimes. This document empowers the people (or institutions) you choose to manage your bank accounts, taxes, mail and other matters if you are unable to take care of them for yourself. If you do not have a durable power of attorney, and you become incapacitated, someone will have to go to court to be appointed to handle your financial affairs. Maybe there are several people in your life who think they would be the best person to handle your finances if you cannot do it for yourself, and if you have not appointed the person you think would be best, then the process of loved ones going to court and having someone appointed can be both expensive and divisive.

We include durable powers of attorney in all our estate plans at every level.

Healthcare Planning

Advanced Medical Directives (also referred to as Advanced Healthcare Directives and Medical Power of Attorney)

Fully half of us will someday lose our capacity to make healthcare decisions or communicate our informed consent to medical treatment. When that day arrives, if we have done a good job planning and making our wishes well-known to the people we leave in care of us, our lives are vastly better, and the burden we place on those who care for us are lighter, and easier to bear.

You may already know that a power of attorney is a legal document that empowers another person to take certain actions as your agent, exercising your authority in circumstances (such as physical absence) when and where you cannot. Ordinarily, a power of attorney ceases its operation when you lose capacity, but a durable power of attorney is a power of attorney that by its own terms survives after you become incapacitated, so that the agent(s) you empower to make health care and related decisions for you can still do it, even when you can’t. We often refer to such a power of attorney as an Advanced Medical Directive. It is the best tool that we are aware of for making sure that the decisions which are made for you when you can’t make them or communicate them yourself are the decisions you would have made. It’s also the best legal tool for empowering an agent who has the desire and the strength to advocate for you and the decisions you would have made, so that you get the care you want and deserve.

An Advanced Medical Directive is a critical document for everyone 18 and older to execute. We always include an Advance Medical Directive in the estate plans we design for our clients.

Living Wills and DNRs

Probably the most important thing to remember about a Living Will is that it isn’t a will. It’s a document that directs your health care providers in providing you care in the event that you are unable to communicate informed consent while you are still alive. In other words, it is a set of instructions about what doctors and other medical personnel may and may not do to you when you are unable to make those decisions or communicate them. A DNR (Do Not Resuscitate order) is a physician’s order which must be signed by your physician, which directs emergency and other health care providers not to administer of certain life-saving measures.

These documents are different from powers of attorney (like the Durable Power of Attorney discussed in the previous section, and the Advanced Medical Directive, immediately above) in that they try to predict what you would want in the way of health care decisions ahead of time, and set rules for your providers to follow when you are unable to make decisions or give instructions in the moment of need. The powers of attorney, on the other hand, make use of a trusted agent who, ideally, knows you well and understands and respects your wishes. That agent, through the Advanced Medical Directive, for example, is given the power to make the decisions you would make, based on the circumstances. We see this as a superior means of seeing that your wishes are carried out, that is, superior to using a written document which tries to meet the future, and all its variability, with rules alone.

Small Business Formation, Planning and Representation

Many of our clients are business owners, just like us. We help business owners design, implement and maintain effective plans to help them reduce their personal liability, preserve all viable income tax deductions, facilitate the owner’s retirement, maintain family harmony, retain key employees and minimize income, gift and estate taxes. We can help you develop and implement employment policies that prevent employment issues and protect your business from liability to your employees or former employees.

To help owners protect estates and businesses that have been a lifetime in the making, we focus on an integrated approach to planning. This approach includes estate, retirement, insurance, asset protection and tax planning issues. More important, it includes discussions about family values and belief systems. As a result, we rely heavily on the expertise of our clients’ other professional advisors to help create the most effective team for our clients’ success.

Most of our business representation is done on an hourly basis. Hourly rates differ for attorneys and paralegals. We will give you a “best estimate” of the total fee based on the scope of the work we’re hired to do. Generally, we will give you a maximum amount that we will not exceed without permission. In some cases, we will quote you a flat fee to perform your legal work. In any event, we and our clients will sign an Engagement Letter and Fee Agreement that identifies each of our rights, duties and obligations, and the agreed upon fees.

Initial meetings for all business-related matters will vary in time depending on the topics discussed. Because we will be giving you legal advice and discussing various strategies, we charge $150 for this meeting. Although you have no obligation to hire us to work for you after the first meeting, you will receive advice and information you can use immediately.

Special Needs Planning (for children and adults)

Children with special needs need special planning to maintain their eligibility for public benefits and programs after they turn 18. They also may need help managing financial assets into adulthood and may need to be protected from persons who might try to take advantage of them financially. Special needs planning opens up possibilities for your special needs child by giving them access to all the benefits and programs they qualify for so they can realize their potential and be as independent as possible. As parents of a special needs child, Michael and Lelia are uniquely aware of these issues and can connect you with additional resources that will help you protect and parent your special needs child.
Also, with medical advancements, persons with disabilities are living longer and public benefits are often necessary, yet there is no guarantee that public benefits will provide adequate resources over the disabled person’s lifetime, or that existing public agencies will continue to provide acceptable services and advocacy over a disabled person’s lifetime.

An Overview of Special Needs Estate Planning

A Special Needs Trust is a trust that can supplement the needs of a special needs beneficiary while allowing the beneficiary to maintain his or her governmental benefits, including Supplemental Security Income (SSI), Social Security and Medicaid.

If the special needs trust is established by you or someone other than the disabled person and the disabled person does not have the legal right to demand trust assets, the trust is not considered a ‘countable resource’ for purposes of government benefits. Therefore, the special needs trust beneficiary can continue to receive benefits even though he or she is a trust beneficiary. The trust will give the trustee the discretion to make distributions to the beneficiary to the extent possible without reducing benefits, and trust assets are available if the beneficiary no longer qualifies for governmental assistance or that assistance is no longer available.

If the trust is established on the beneficiary’s behalf pursuant to court order, for example as part of a personal injury settlement, the trust will not impact the beneficiary’s eligibility, but it may need to include a ‘payback’ provision that reimburses the state for its assistance before trust assets pass to the trust’s other beneficiaries.

Common savings vehicles for children, like Uniform Transfer to Minor Acts (UTMA) accounts, typical trusts, or designating a retirement plan, insurance policy or annuity directly to an SSI or Medicaid recipient will cause a reduction or elimination of public benefits. Recognizing this, some parents make the difficult decision to disinherit their special needs children, but this severe action is unnecessary.

Fiduciary and Probate Litigation

Michael and Lelia are veteran litigators, particularly in complex civil litigation, with combined experience of over 40 years. Even though we strive to keep our clients’ loved ones out of court, we still maintain a limited litigation practice focused on probate, trust, conservatorship, and guardianship matters.

As planning attorneys, helping individuals and families plan for their futures, families, and estates, we are uniquely qualified and situated to bring real problem-solving to fiduciary and probate litigation. This is because when plans don’t work out, or aren’t followed, court is where the problem is ordinarily resolved, and we are really okay with that, as long as it’s really necessary.

Our probate and trust litigation practice focus on the following types of cases:

  • Will Contests
  • Cases involving or alleging breach of fiduciary and trustee duties
  • Capacity and Undue Influence cases
  • Complex probate administration, including intestate cases
  • Conservatorship and guardianship cases
  • Disinheritance Issues
  • Commercial disputes involving trustees