How Do I Choose a Legal Guardian for My Child?

Choosing Your Child's Legal Guardian

Choosing Your Child’s Legal Guardian
NOVA Estate Lawyers – Leesburg, VA

It’s something no parent wants to think about, but eventually must ask themselves: Who would take care of your child if you passed away before they reach adulthood?

For most people, the answer is their spouse or partner. However, if you’re a single parent – or, if you’re considering the unlikely event that both you and your child’s other parent die – this decision can be an incredibly difficult and emotional one.

In order for someone to become the legal guardian of your child after your death, you must name that person (or people) as such in your will. If circumstances require your legal guardianship clause to be invoked, a probate court will then review and, almost invariably, approve the nomination(s). Failing to name a guardian in your will means your child’s caretaker will be appointed by the court – which could ultimately mean foster care if none of your loved ones step up.

Given the significance of this choice, you’ll want to make sure the guardian you choose is competent, financially stable, and trustworthy. Here are a few important factors to weigh when deciding who your child’s legal guardian should be.

Think about who would love and care for your child in the way you would.

People often choose close family members – parents, siblings, cousins, aunts and uncles, etc. – as legal guardians because there is already an existing bond between them and your child. If you have a loving, supportive relationship with your family and feel confident that they would extend that love to your child as a guardian, it makes sense to appoint one of them.

Depending on your dynamic, a family friend or other non-related trusted adult in your child’s life could also be a viable choice.

Consider your potential guardian’s background, values, and lifestyle.

You may think your sister would be the perfect guardian because she’d love your child as much as you do. But if she has children of her own and is struggling to make ends meet, you may not want to place that potential burden on her. Similarly, you may have a wealthy aunt who could easily provide for your child, but you’re concerned about how her political or religious views might impact your child’s development.

It’s important to strike the right balance between someone who is both emotionally and financially available to raise your child. Ideally, you’ll choose someone whose values and beliefs align well with your own, so your child’s transition into their care and household will be smoother.

Have a conversation with your potential guardian about raising your child.

Think you’ve found the perfect guardian? Make sure you give them a heads up. Although you do not legally have to obtain someone’s permission before naming them a guardian in your will, it is strongly advised that you speak with the person and give them the option to back out. That person has the right to refuse guardianship if asked by a court, so getting their permission is not only courteous, but crucial to ensuring that your wishes are honored. Ask your potential guardian if they feel comfortable filling that role in your child’s life, as well as shouldering the financial responsibility for your child until adulthood.

Made your choice? Make it official.

Once you’ve chosen your child’s legal guardians and spoken with them about taking on this responsibility, it’s time to add it to your will. Set up a meeting with your estate planning attorney to add this information your will and make the decision official. Remember, if circumstances change or if your original choice no longer feels comfortable being named a guardian, you’ll need to update your will with a new choice as soon as possible.

Deciding who you want to be responsible for your child if you die can be intimidating, but take your time and make this choice carefully – it’s one of the most important estate planning decisions you’ll make as a parent. Hopefully your legal guardians will never have to step up to the plate, but if they do, you’ll feel good knowing that you’ve made the best choice for your child’s future and well-being.

Need an estate planning attorney? The Law Office of Patricia E. Tichenor, P.L.L.C. is here to help. Contact us today to speak with one of our experienced, compassionate counselors about drafting or updating your will.

4 Common Estate Planning Mistakes You Can’t Afford to Make

Estate Planning

Estate Planning Mistakes to Avoid
NOVA Estate Lawyers – Leesburg, VA

Estate planning can be a difficult and stressful process, and mistakes and oversights are common. After all, there’s a lot to consider when writing a will and naming beneficiaries, and it’s easy to miss a thing or two.

Unfortunately, the cost of these errors often falls on your loved ones when certain aspects of your will are not properly carried out.

Below are four frequent estate planning mistakes that could jeopardize the execution of your final wishes.

1. Only writing a will

A will is the most commonly discussed estate planning document, but it’s not the only one you need. You should also have a power of attorney – a legal agreement to give another person the authority to make important financial and medical decisions for you if you have lost the capacity to do so yourself while you’re alive. You can have separate POA agreements for financial versus medical decisions, but whoever you choose for the role(s) should be someone you trust to act in the best interest of you and your family. Without these documents, a court-appointed agent or a doctor could be the one making decisions about your assets and medical care.

2. Assigning responsibilities to the wrong individuals

Naming someone as an estate executor, a trustee, or a guardian to your minor children may seem like a great honor, but it also comes with a tremendous amount of responsibility. Think about whether the people you choose for these roles can handle the duties involved, as well as whether they might let family conflicts or greed get in the way of carrying out your intentions. Sometimes, it’s better to name an objective non-family member or hire a professional trustee who does not stand to benefit from your assets.

3. Never updating your will or beneficiaries

Estate planning is not a one-and-done activity. As you go through life, your circumstances and relationships will change, and you need to continually update your estate planning documents to reflect your current situation, especially if someone you’ve named as a beneficiary passes away or is otherwise no longer in your life.

Many experts recommend reviewing your will every three to five years, but at minimum, you should update it whenever you experience a major life event – marriage, divorce, the birth of a child, the death of a relative, etc. It’s also important to keep track of assets that are transferred outside the probate process – such as retirement accounts, life insurance, and joint property – and ensure your beneficiary designations are up-to-date.

4. Not making estate plans at all

A 2017 BMO Wealth Management survey found that a staggering 52 percent of Americans have not made a formal will. Verbally telling family members about your intentions or writing a letter for your children to open upon your passing does not constitute a legally valid last will and testament.

It can be scary to face your own mortality and procrastinate on estate planning, but it’s even scarier to think about the legal, financial, and emotional aggravation your children and surviving relatives will have to deal with if you don’t have a plan in place.

How to Avoid Estate Planning Mistakes

The best way to secure your family’s future is to work with a professional to create and update your estate planning documents. An experienced estate planning attorney will help you cover all your bases, and include the right legal language to ensure your wishes are honored. Even if you write your own will, you should still hire a lawyer to review and revise it.

Contact The Law Office of Patricia E. Tichenor, P.L.L.C. to speak with one of our counselors about your estate plans today.

Will Your Estate Plan Be Impacted by the New Tax Law?

Estate Planning Under the New Tax Law

Estate Planning Under the New Tax Law
NOVA Estate Lawyers – Leesburg, VA

When the Tax Cuts and Jobs Act (TCJA) was signed into law in December 2017, it brought numerous, significant changes for individuals and businesses alike.

With Tax Day 2018 behind us, many taxpayers have already felt the impact of this sweeping tax reform. Overall, the changes promise to benefit the average American – some of the provisions of the new law include:

– A lower top tax rate
– Increased standard deductions
– New or increased credits for qualifying children and dependents
– A deduction equal to 20 percent of “qualified” pass-through business income; and, beginning in 2019
– The repeal of the “individual mandate” for minimum essential health coverage and its associated penalty

One important change to the tax code under the TCJA is an increase to the estate and gift tax exemption. Previously, estates and lifetime gifts valued at $5 million (or $5.49 million, indexed for inflation) and higher were subject to federal estate taxes. The new limit, effective January 1, 2018 through December 31, 2025, is $11.2 million ($10 million base) for individuals and $22.4 million ($20 million base) for married couples. Put simply, the vast majority of American estates are now exempt from federal estate taxes.

It’s important to note that if you live in one of the 15 states with an estate or inheritance tax (or both), your estate may still be subject to state taxation if its exemption limits are not tied to the federal limits. Detailed information can be found on the Tax Foundation website.

Why Now is the Right Time to Review Your Estate Plans

Although your current assets may be nowhere near the new federal exemption limit, now is a good time to review your current will, trust, powers of attorney, or other estate planning documents. These new limits are only in place through the 2025 tax year, and will return to the previous $5 million limit afterward. The limit increase could even be reversed sooner, depending on congressional and presidential elections between now and then.

During this temporary increased exemption period, you can clarify your estate plan and ensure that your loved ones are set to reap the maximum benefits – with the least amount of taxes – when you pass away.

Of course, taking advantage of these exemptions requires estate planning documents with the proper legal language and specificity to make sure your wishes are honored. For example, married couples must invoke portability in their estate plan for the surviving spouse to avoid the estate tax on spousal inheritance that was within the exemption limits.

It’s also critical to customize your powers of attorney with specific instructions regarding the distribution and gifting of your financial assets. If your POA is too vague or general, your estate executor and/or financial agent now may not be able to distribute your estate plan to ensure the greatest tax savings to your estate or may have access to  a loophole to legally distribute your money as they see fit – and  not  in ways you intended.

Contact an Experienced Estate Planning Lawyer

Any time there is a change in tax law, life circumstances, or both, you’ll want to consult an experienced estate planning attorney who can help you navigate the complex and often emotional facets of planning for your family’s future. Contact The Law Office of Patricia E. Tichenor, P.L.L.C. to speak with one of our counselors about your estate planning needs today.

Divorce in the Military

Divorce in the Military

Divorce in the Military
NOVA Estate Lawyers – Leesburg, VA

Divorce laws vary from state to state, and are generally controlled by the statutes of the State where the parties last cohabitated as husband and wife. But, what if you are a member of the U.S. Armed Forces? Do the same rules apply?

When it comes to military divorces, special rules and requirements apply to U.S. service members and their spouses. Divorce in that situation can be controlled by both State and Federal statutes.

When serving active duty, the service member is generally protected from divorce proceedings under the Servicemembers Civil Relief Act (SCRA) that states that a service member cannot either be sued for or begin divorce proceedings while they are on active duty or for 60 days following active duty (at the court’s discretion). In addition under SCRA, a court can delay divorce proceedings during the time the service member is on active duty or for up to 60 days afterward.

Three Options of Where to File for Military Divorce

Prior to a divorce being granted, the court in which the case is filed must have both personal jurisdiction over the parties and subject matter jurisdiction over the specific area of the law involved (e.g., military courts do not hear divorce cases, and state courts do not hear military cases). “Jurisdiction” over the parties generally (or their last marital residence) will determine which court has the authority to make decisions regarding the divorce. For civilians, it is most often where they live; their state of legal residence. With military divorce, because a member of the U.S. Armed Forces can designate residency in state where they do not reside full-time while in active duty, determinations of “jurisdiction” often are controlled by where the spouse filing for the divorce resides, particularly if that is where the parties last cohabitated together as husband and wife. In some instances, where the real estate the parties own or where the children are being raised plays a significant role as well in deciding which court has proper “jurisdiction” over the case. Hence it is recommended to obtain a family law/divorce attorney to properly guide you on which state is proper or best to file in for the divorce.

For military members and spouses, divorce can be filed by one of three choices:

1. In the state where the military member is a legal resident;
2. In the place where legal residence of the spouse is established, even if that service member is stationed elsewhere;
3. In the state where the military member is currently stationed, whether or not they are a legal resident of that state.

Division of Military Pensions and Benefits

In the event of divorce, a military pension is subject to division between spouses and under the federal statute known as the Uniformed Services Former Spouses’ Protection Act (USFSPA). Depending on the state, it can be treated as sole or community property, and divided between or awarded to a spouse based on that state’s specific laws governing divorce. The USFSPA guides the court on how best to address issues like military pension, child support and spousal support.

Military spouses are also subject to the “ten year rule,” which allows a former spouse to receive direct deposit payment of his or her portion of the former service member spouse’s military retirement from the Defense Finance and Accounting Service (DFAS) so long as there was ten years of marriage that overlapped with ten years of military service.

As an example, if a couple were married for 15 years, with the military member serving for 8 of those years, the spouse would not be eligible for direct payment through DFAS, and s/he would then have to receive those amounts on a monthly basis from the military member spouse until paid in full. However, if a couple were married for 15 years and the military member served for 12 of those years, all payments would be by direct deposit from DFAS to the former spouse would be made by DFAS. A spouse cannot collect his/her portion of the retirement pay until such time as the retiree applies for it; therefore, some people put a specific time frame as to when to begin claiming/receiving benefits into their divorce settlement.

The maximum amount a spouse can receive of the military retirement income is 50%. If the payment also includes child support, the maximum combined amount deducted from the disposable retirement pay cannot exceed 65%. Both the military member and the spouse should be aware of the full value of the pension when settling a divorce.

Spouses of former military service members may also receive full medical, commissary and exchange privileges (full base privileges) in addition to pension benefits (as long as they don’t remarry) under the following conditions, sometimes called the 20/20/20 rule:

• The marriage lasted 20 years or more;
• The service member has 20 or more years of creditable service toward retirement pay; and
• There was a 20-year overlap of marriage and military service.

In addition, in cases of divorce, the ex-spouse of a military member is no longer a beneficiary of the Survivor Benefit Plan, as they were while married. This benefit must be addressed in the divorce settlement.

Determination of Alimony and Child Support

The military has specific rules for determining spousal and child support and may also require the payor-spouse to maintain life insurance covering these payments for a specified period. A divorced spouse will no longer qualify to take advantage of on-post military housing and will need to find housing elsewhere.

The court may enforce these obligations by:
• Court-order
• Garnishment
• Voluntary or Involuntary Allotment

Contact a Family Law Attorney Familiar with Military Divorces

Since there are special rules and regulations regarding a military divorce, it is best to seek legal advice before taking action. At the Law Office of Patricia E. Tichenor, P.L.L.C., attorneys Patricia Tichenor or Camellia Safi would be glad to provide representation in seeking your divorce or assist you with issues of child or spousal support. Located near INOVA Loudoun Hospital in Leesburg (Lansdowne), Virginia, we serve clients throughout Northern Virginia. Please contact us today.

Liquidation of an Estate Following Death

NOVA-Estate-Lawyers-Tichenor_Estate-Planning_Family-Law_Liquidation-of-an-Estate-Following-Death

Liquidation of an Estate Following Death
NOVA Estate Lawyers – Leesburg, VA

Liquidation in the simplest terms refers to the conversion of hard assets to cash. Liquidation of an individual’s estate does not just occur upon a death. It can also occur when a parent chooses to liquidate assets in order to fund something like the purchase of a second home or a child’s college tuition. Liquidation can also occur as a result of bankruptcy, where assets must be liquidated to pay off debts owed. For purposes of this blog article, we will focus on liquidation as a result of a death.

Liquidation of an estate most often occurs when someone in the family dies, and refers to the disposition of everything owned by that person. It can be divided into two classes: real property (real estate) and personal property (which includes tangible personal property such as a car and intangible personal property such as stock certificates, bonds or CDs).

An estate liquidation is typically held with the purpose of legally clearing out tangible personal property. Depending on the title of real property and whether there are any designated beneficiaries for a decedent’s intangible financial assets, there may also be some need to liquidate these assets.

Often a family will retain legal counsel to assist them with understanding exactly how to distribute the assets of a decedent’s estate if there is no Will or other directive in place, such as a beneficiary designation, that gives clear instruction. This could include: real estate, stocks, bonds, investments, other financial assets, jewelry, heirlooms, furniture, etc. Items that cannot be transferred to a specific beneficiary may need to be liquidated through auctions, estate sales, or donation.

The difference between an estate liquidation and an estate sale is that the liquidation can include stocks, bonds, real property, collections such as coins or fine art, and fine jewelry. Usually the estate liquidation involves the use of professionals such as an estate attorney, CPA, appraiser or Realtor.

Another consideration for liquidation is the payment of debts as well as estate tax, income tax or inheritance tax. An experienced estate and probate attorney can provide necessary guidance to families on how best to address these issues.

Hopefully, the deceased individual prepared an estate plan, to include a Will or Trust, or a designation of a survivor/payable on death beneficiary, to leave clear instructions on the distribution of their estate. If not, the estate would require possible costly probate of most (if not all) of their assets.

Steps to Handling an Estate Following a Death

• Locate any will or trust to determine who has been appointed to serve as executor or trustee.

• Obtain several certified copies of the death certificate.

• Gather the mail and notify any creditors of the decedent (e.g., mortgage company, utilities, credit cards) of the death, and to freeze further activities on any lines of credit other than what will be paid once an executor has been officially recognized by the proper court in the county/city where the decedent died. Never pay any bills with your own money. Most creditors will make a note of the death in their file and give some leeway on when the next payment may be due. In cases where the estate is effectively without assets to pay creditors, none of them should be paid without first speaking to an attorney about the enforceability of such obligations, as it is not uncommon for such creditors to simple write-off these debts as a loss on their books due to the fact that the estate it too insolvent to pay any debts.

• Secure any real or personal property, meaning lock down the decedent’s residence and do not allow family members to remove any items prior to the executor (referred to as an administrator if there is no Will) to qualify and properly itemize all the contents of the residence to the court as required by law. Distribution of assets is a formal process and requires the signing of a receipt by any beneficiary with the receipt providing protections to the estate and the executor should the item(s) need to be reclaimed later for legally-enforceable obligations such as federal and state taxes that the decedent might owe.

• Notify agencies such as the U.S. Dept. of Social Security, U.S. Dept. of Veteran’s Affairs, Office of Personnel Management, or other federal agencies who may have touched the decedent’s life, any insurance companies, and credit reporting agencies such as Experian, Transunion and Equifax, so that no one can use their social security number to obtain new accounts or credit.

• Secure guardians for minor children or dependent adults (if applicable).

Steps to Settling an Estate

• Consult with an experienced estate, trust and probate attorney in the state where the deceased lived at the time of death.

• Check to see if a revocable living trust is in place and whether any assets were titled into it or will be added to it by the decedent’s Last Will and Testament. After qualifying as executor, the executor must follow the terms of the Will, and any trustee must abide by the terms of the trust for distribution of property.

• Typically, the Executor of the Will will be responsible for fulfilling the legal duties under state law, and the administrative tasks such as inventorying property and assets, notification of creditors and payment of debts and taxes. However, if there is a Trustee, they should work together to ensure proper management and distribution of all assets of the decedent occurs.

• If there is no trust or Will, for the deceased’s assets, check to see if the decedent held things jointly with another person who would inherit by right of survivorship, or if s/he named a beneficiary to receive the assets at his/her death, also referred to as a “transfer on death” or “payable on death” beneficiary designation. If not, then all assets of the decedent (with certain exceptions in states like Virginia which follows the “drop like a rock” doctrine for real estate) will be subject to the reporting requirements of probate and be supervised in terms of distribution by the Court (in Virginia, the Circuit Court and its Commissioner of Accounts). This can result in costly additional fees and taxes as well as delays in the ability to deliver inheritance to loved ones who may need financial support. Any surviving spouse should confer with an experienced probate attorney about his or her legal rights to statutory protections involving a family allowance, augmented estate rights, and more.

When faced with the challenge of liquidation arising from the death of a family member or friend, there are many legalities that must be followed. An experienced estate, trust, and probate attorney can guide you through the process, answer any questions you might have, and put your mind at ease.

Contact the Law Office of Patricia E. Tichenor

You have enough on your mind with the death of a loved one; let your estate attorney help ensure the smooth transition of assets and the settlement of the estate. For estate liquidation questions in the Commonwealth of Virginia, contact Law Office of Patricia E. Tichenor, P.L.L.C. located in Leesburg, Virginia. Since 2001, we’ve been helping families set up trusts, revocable living trusts, wills, living wills, and guardianship documents, as well as assisting them with probate/estate liquidation issues. You’ll like our warm, consultative style of interaction and no-nonsense approach to getting things done. Contact attorneys Patricia Tichenor or Camellia Safi today.

The Law Office of Patricia E. Tichenor, P.L.L.C.
Professional Legal Services or Legal Representation
(703) 669-6700

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  • High quality service with both personal and a professional touch. I would highly recommend their services, they helped prepare my estate in the event of my demise. They also prepared the necessary documents to complete my wife's estate after her passing, both with outstanding results. - Jim D.
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