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Estate Planning (Wills, Trusts and Powers of Attorney)

Estate Planning (Wills, Trusts and Powers of Attorney)

People often say, “I don’t have an estate!” or “I’ll be gone, so what difference does it make?” and we understand where these ideas come from, but the reality is that while most people aren’t rich, everyone has an estate plan, even if they don’t know it. This is because an estate plan is the plan for what happens to you when you are incapable of dealing with your own affairs, and what happens to your stuff, even if you don’t think you have much, after you die. The state already has a plan in place for you in both of those cases, and if the government’s plan isn’t what you want, it’s important for you to take control of your estate plan while you still can. This can make a big difference to you and the people you care most about in the event of your incapacity, and a big difference to those you leave behind in death.

“Planning for the future means taking action today.”

At Commonwealth Life and Legacy Counsel, we’ve learned that peace of mind comes with effective forward planning. Your affairs need to be effectively arranged, managed, and protected so that you, your family and other beneficiaries can benefit from your estate both during your lifetime and after your death.

Choose an Estate Planning Attorney Who Listens and Makes Your Goals Their Priority

Estate planning involves more than just documents. It is a dynamic process that incorporates your specific goals for yourself and your loved ones into a comprehensive plan for disability and death that minimizes unnecessary costs and addresses all of your assets. One of the most common complaints about attorneys is that they do not listen. At Commonwealth Life and Legacy Counsel, we are committed to actually listening to our clients and providing legal advice tailored to their unique goals, family structure and which addresses their particular concerns and types of assets. For more information about how to choose an estate planning attorney, click here.

Choose an estate planning attorney that has the knowledge and skills to help you set up an estate plan to help you plan for your disability, secure your wealth and communicate your values to the next generation. Our attorneys will help you create a plan for efficient handling of your affairs in your incapacity and that minimizes costs and taxes, and reduces the chance of conflict among your loved ones.

Minimize Taxes and Fees

Your estate planning attorneys will work with you to create a plan that minimizes probate and other tax implications, including income and capital gains taxes. If needed, they will collaborate with your CPA or tax advisor to make sure your estate plan provides the best possible tax treatment for your estate and your beneficiaries.

What Happens When Someone Dies Without a Will?

When someone dies without a valid Will, they are said to have died intestate. Virginia law provides for how person’s estate will be distributed if they die intestate, and that plan may not be the one you would choose for yourself. If you have minor children, someone will have to go to Court to ask to be appointed guardian for them. This can result in conflict among family members each of whom may think they are the best person to care for your children. There also are additional costs and fees associated with dying intestate, because someone has to step forward to ask the Court to appoint them to administer your estate. More than one person may think they are the best person to this, which can result in litigation. Your estate also will have to pay the cost for your administrator to be bonded in order for them to qualify to settle your estate. Click here to read the Virginia statute on intestate succession. For more information on what happens if you die with out a will, click here.

Wills and Living Trusts

A Will gives instructions to the Court about who will receive your assets at your death. It appoints an executor/personal representative to administer your estate and, if you have minor children, your Will appoints guardians for them. You also can provide for your pets in your Will, using a pet trust, and express your wishes regarding burial versus cremation. Your Will is filed with the Circuit Court in the county or city where you were living at the time of your death and is a public document. Probate is the process of filing the Will with the Court, having an executor/personal representative qualified to carry out the instructions in the Will, and having the Court (usually through the Commissioner of Accounts) oversee and approve the process of settling your estate. For more information about Probate and Estate Administration use these links: click here or here.

A revocable living trust is a private document that directs how your assets should be managed during your incapacity as well as after your death. While you are alive and have capacity to make financial decisions, you have the same access and control over your assets as you would if you did not have a trust. Trusts provide maximum flexibility with a greater level of control over how assets are managed. The trust document appoints a trustee to manage your assets in the event you cannot do so yourself, and can provide detailed instructions about whether your assets should be distributed outright to your beneficiaries, or whether they should be held in trust for a period of time, until certain conditions are met, or over generations. It is not filed with the Court and can be used to avoid the probate, but only if all of your assets are re-titled into the name of your trust or aligned with your trust by designating your trust as a beneficiary of your life insurance and retirement accounts. This can be a complex and tedious process and you should consult an attorney to help make sure it is done correctly.

If you have questions about whether a Will or a trust is best for your particular situation, please call or email us to schedule a free initial consultation.

Durable (Financial) Powers of Attorney

A durable financial power of attorney is a document that empowers the people you name to make financial decisions for you in the event you are incapacitated and cannot make them for yourself. Durable means that the power it grants to your agent survives your incapacity. Virginia law presumes powers of attorney are durable unless they state otherwise. It is important to carefully consider who to appoint to act as your agent under a durable power of attorney, because the role requires someone who is trustworthy and able to keep good records. Your agent is required by law to act in your best interest, not in their own, but this can be a difficult distinction for some people to understand and carry out.
It is important that your power of attorney is thorough and well drafted and only gives the powers to your agent that you want them to have, but also that it gives your agent all the powers they need to manage your affairs during your incapacity.

If you do not have a durable power of attorney in place before you become incapacitated, someone will have to go to Court to ask to be appointed as Conservator of your estate to have the authority to manage your finances. The Court process takes time and is expensive. It also can create conflict among your loved ones, more than one of whom may think they are the best person to be appointed to manage your finances.

Click here for more detailed information on Virginia Powers of Attorney. Click here for the Virginia Court FAQ’s for Guardians and Conservators.

Advance Healthcare Directives/Medical Powers of Attorney

This document empowers the people you choose to make healthcare and personal decisions for you in the event you are unable to make them for yourself. This is a document you can put in place for yourself, you just need to have two people witness your signature. You may be able to get a form from your doctor, and there is a suggested format for this document in the Virginia Code which can be found by clicking here. Because the decision about who is the best person to make healthcare decisions for you can be a difficult one, it may be beneficial to consult with an attorney.

If you do not have a healthcare directive/medical power of attorney in place before you become incapacitated, Virginia law has a plan for who is authorized to make healthcare decisions for you if you cannot make them for yourself.The Virginia Healthcare Decisions Act, appoints your spouse, and if you do not have one, your next closest relative(s) to make decisions for you, when you do not have a healthcare directive/medical power of attorney in place. The relevant portion of the Virginia Healthcare Decisions Act can be found by clicking here. The Virginia Healthcare Decisions Act may not appoint the people you would want to make healthcare decisions for you. So, it’s important to proactively plan and make your decisions about who you trust to make healthcare decisions for you known to your healthcare providers and your loved ones while you are able to do so. For more information about healthcare directives, as well as a variety of forms approved by the Virginia State Bar, click here.

The Virginia Healthcare Decisions Act does not provide for who can make personal decisions for you: where you live, who can visit you, etc., so it is important to put a comprehensive medical directive/medical power of attorney in place so that your loved ones do not have to go to Court to be appointed as guardian for you if you become incapacitated. For more information about guardianships, click here.

Living Will/Directive to Physicians

A Living Will is not a Will at all. It is a set of instructions to your healthcare providers about what sorts of procedures/interventions/medication you would or would not want in the event you have a terminal condition, and are only being kept alive with machines. We prefer to call this document a Directive to Physicians because it is a more accurate description. Your doctor or hospital should have a form that you can sign, but you can find free forms approved by the Virginia State Bar by clicking here.

Once you have your healthcare directive, and end of life plan in place, you can upload them to the Virginia Healthcare Directive Registry, called Connect Virginia, by clicking here. Connect Virginia is a free online registry that allows Virginia residents to securely store important healthcare documents so that family members, medical providers, emergency personnel, or other persons you designate will know your wishes and be empowered to carry them out.

Take the First Steps to a Secure Future

A robust estate plan will help to secure both your future and that of your beneficiaries, as well as offering great peace of mind knowing that everything has been taken care of. With this in mind, the sooner you start, the better. It can be tempting to delay as making provisions for your passing can be uncomfortable. There is no better time than right now, especially if you are business owner, have a large and complicated asset base or if you are the parent of a minor child or a child with special needs.

To get started, call or email us today to schedule your free initial consultation with our experienced and caring attorneys: take the first step to creating the peace of mind that comes with protecting what matters most for yourself and your loved ones.

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