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How to Help Your Aging Parents Make Their Estate Plans

As parents age, children need to have tough conversations with them to keep their care and assets in the right hands. Here is a helpful guide for adults with parents who may be getting older, or are in declining physical or mental health, and need assistance preparing their estate plans.

How to start the conversation

While it’s never easy to bring up such a difficult situation, it’s important to start the conversation about estate planning as soon as possible, rather than putting it off until something unfortunate happens. Start by asking your parents about where they are currently in the estate planning process. From there, take the time to understand what they need to do moving forward and find out how you can help them. This may include arranging meetings on their behalf with an estate planning attorney if they don’t have one already.

Productive estate planning discussions require all parties to be patient and communicate transparently, and it’s important for children to be empathetic to their parents to ensure they still feel in control of their own lives.

Helping them get organized

Estate planning involves a lot of different documents and arrangements. Your parents may need help staying organized with the following items:

• Help your parents prepare and organize not only any signed Wills, trusts, and powers of attorney. You should also help them put together and inventory of all their financial accounts, whether those accounts have named beneficiaries, along with printing out a year-end statement.  If they have any life insurance, annuities, long-term care insurance, or other important documents (including records of any assets or personal belongings inherited by them from other family), make sure that copies of all insurance policies and both a list and photos of any inherited belongings are put together.  If their existing Wills, trusts or powers of attorney seem unclear, consult with an attorney about their content to understand fully what the documents do and don’t say, or do or don’t provide for moving forward.  All language should be clear and detailed, with no room for interpretation or error.
• Emergency contacts and medical care information. Save your parents potential harm by keeping important contact information organized and accessible before they need it. Keep it in a secure, easy-to-find location and include names, phone numbers, and relevant information for doctors, lawyers, financial advisers, storage rental facilities, and any other important contacts. Also include log-in information for bank accounts and other digital assets. Consider a medic-alert bracelet as well as the newer medic-alert wearables like necklaces, rings, watches, and bracelets that actually allow a parent to call for help (police, ambulance, or you) in the case of a fall or other emergency.
• Final Arrangements for Their Body After Death. Although it is most certainly an emotional topic, ask if your parents know what they want to happen with their body after death.  It’s important to discuss whether they want to be cremated or have a casket burial, as well as what kind of service they want — including their preferences on flowers, hymns, verses, and photos they would like on display. Have they already purchased something or would they like to do so as a pre-paid plan?  Leaving those decisions to one’s children or other family members (they need to understand) creates a heightened level of pain and anxiety for a family after their death.

Comprehensive estate planning requires learning what to expect for probate, how to avoid probate wherever and whenever possible, choosing an executor for a Will, and picking a trusted person to serve as an agent under a financial or medical power of attorney.  A power of attorney handles financial and medical decisions on someone else’s behalf while they are still living — particularly in times of disability or incapacitation. Similarly, an executor handles financial affairs and takes care of one’s assets after they pass.

A trusted person, such as a spouse, family member, or close friend, should be chosen for these roles, as they will need to handle legal needs such as distributing provisions from your parent’s will and paying bills on behalf of their estate, among other things. Another option is to go with a third party, such as a business or legal professional. This option will cost money, as opposed to a family member who will usually handle the responsibility for free; however, a neutral third party can help families avoid conflict in their time of grief.

Considerations when helping with your parents’ estate plans

Determine their goals

Determine your parent’s estate planning goals while they are still in good health. Find out their intentions and how much involvement they need from you in the planning process — as well as after they pass — and keep detailed notes so you can reference them as needed.

Avoid undue influence

Ensure that all estate planning documents fully reflect the creator’s wishes, otherwise, there could be a case of undue influence. Undue influence is when an influencer, or manipulator, uses a testator’s (the estate plan creator) poor mental or physical state to change documentation, including wills and trusts, to benefit the influencer.  Keep in regular contact and communication with your parents, visit them, and make sure you are aware of who it providing them with any caretaking services or socializing with them.  Undue influence is something that can take place very gradually over time, often when children or other family are not around and not in regular enough contact to catch it.

Plan for care

Discuss how your parents would like to be cared for, whether it’s at home with a family member or in a long-term care or assisted living facility. Should a family member become a caretaker, determine what their responsibilities will be.  Determine what assets will be available to pay for the costs of such care.

Get help with your parents’ estate plans from an experienced Virginia attorney

If you’re in need of an attorney to help with your parent’s estate planning, The Law Office of Patricia E. Tichenor, P.L.L.C. can help. We specialize in estate planning in the Commonwealth of Virginia. Request a free consultation to see how we can help you and your parents finalize estate plans you’re happy with.

What You Cannot Add to a Virginia Will and What It Cannot Do

While your last Will can ensure your descendants receive personal effects and assets on your passing and assign a guardian for minor children, there are limits to what it can achieve.

What a Will Cannot Be Used for in Virginia

A professional estate lawyer in Virginia can guide you further, but these are some of the things that a Will cannot be used for:

Pass Real Estate Ownership Where a Deed Provides for Right of Survivorship

Specific terminologies in a deed for a property can veto it from provisions in your Will. So, for instance, if your deed states that ownership interest includes the ‘right of survivorship,’ it means if one tenant dies, the remaining interest is legally transferred to surviving tenants. You cannot change this even if your Will says it should be changed.

Remove Designated Beneficiaries

You cannot remove designated life insurance and “Pay on Death” beneficiaries for saving, checking, or investment accounts by requesting it in your Will. These assets are automatically transferred to beneficiaries on your passing during probate. Any provisions in your Will that contradict this are void.

Hide Assets That Pass Through Your Will

For any assets passing through your Will, information about those assets must be disclosed to the probate court and is publicly available when (and if) there is a probate event related to your estate. Your executor has to prepare and file a complete inventory of your property (personal and real estate) if it passes through your Will, including distribution requirements.  An experienced attorney can help you figure out how to keep your assets out of probate so that they pass to your beneficiaries outside the Will and, therefore, outside the public eye.

Assign a Guardian to Minor Children Who Isn’t Their Parent

As per Virginia law, you cannot assign a separate guardian to minor children if the other parent is alive unless their parental rights are legally revoked because of their inability to provide care.  You can, however, appoint a successor guardian for your children in the event that their other parent does not survive you.

Avoid or Eliminate Debts

As per Virginia law, your executor has to pay off all of your creditors before other Will bequests can be fulfilled. In some cases, personal property and assets may be sold off to repay debts. Your Will cannot say otherwise. However, your executor can contest unsubstantiated or invalid claims on your behalf. If they cannot prove the debt, it can be eliminated.

What You Cannot Add to a Will

As per Virginia law, you cannot add the following items or provisions to a Will:

Property That Is Not Under Your Name

You cannot include a provision for property in a Will that isn’t owned by you. This also includes property to be distributed to beneficiaries via a trust that bypasses probate and joint property. The latter automatically transfers to the surviving partner on your passing.

A Designated Executor Who Is a Minor Child at the Time of Writing

Even if your children are close to turning 18 years of age, you cannot name them as an Executor in your Will until they are, in fact, 18 years or older.

Provisions Regarding Digital Assets

Your social media accounts contain personal pictures, ideas, playlists, thoughts, and other personal items that are valuable for your loved ones. You can specify what should happen to these digital assets after you pass away through your digital service provider. Facebook and Google, for instance, allow account holders to outline the steps they can take with their accounts when they pass away.

Provisions That Leave Assets to Pets

Since pets are categorized as property in Virginia, they cannot own property themselves legally. Talk to an experienced estate lawyer proficient in Virginia estate and trust law for setting a separate pet trust for your pets.

Provisions for Illegal Requests or Illegally Obtained Assets

Your Will cannot address asset distribution of illegally-acquired property. It also cannot contain instructions for your executor, personal representative, or any other individual to make illegal requests.

Ensure your loved ones are cared for with a Will that can pass the probate process. Make sure your Will is ironclad by hiring an experienced Virginia estate planning and probate attorney, who can provide you with comprehensive guidance on how to avoid probate, how to otherwise use a Will, and to determine what other options for estate planning may best serve your interests.

Need Professional Help to Prepare Your Will or Estate Plan? The Law Office of Patricia E. Tichenor Is Here to Help

At The Law Office of Patricia E. Tichenor, P.L.L.C., we provide more than just legal advice. Our clients deal directly with a principal attorney rather than assistants. We provide virtual meetings, home visits, and other options to facilitate your access to an attorney who will go over your specific questions and needs.

All consultations are free of charge, because we believe in taking a personal approach to each interaction and use innovative solutions that can solve complex legal issues. We prefer to work with clients who want to work with us and feel confident based on our consultation time that the Law Office of Patricia E. Tichenor, P.L.L.C. is the best fit for them.

Our dedicated legal team will help you find the best solutions for estate planning issues and discuss viable options to ensure your beneficiaries are taken care of. Schedule your free consultation to talk through your options.

How to Identify Undue Influence in Estate Planning

When an individual creates their estate plan, it is assumed that the Will, trust, and other estate planning documents reflect the sincere wishes of their creator. If those wishes are manipulated by an outside party, it is known as undue influence.

In many undue influence cases, the influencer — or manipulator — aims to take advantage of the testator (the person creating the estate plan) by exploiting their weakened mental or physical state and encouraging that person to change their Will, trust, and other estate planning documents for the influencer’s benefit.

Virginia’s new standard for undue influence

A new standard for undue influence was introduced for Virginia Will contest cases on July 1, 2022 (Senate Bill 554). Under the new Virginia Code, the standard now reflects the presumption that undue influence was exercised over the decedent whose Will is in question. The change reflected in Virginia Code Section 64.2-454.1 changes the previous standard in Will contest cases which provided for only a temporary presumption of undue influence and was, therefore, easy to overcome.

Under the new law, the burden of proving the validity of an individual’s Will in undue influence cases has shifted from the plaintiff to the defendant. Plaintiffs now have the upper hand with the presumption that undue influence was at play place and are, therefore, in a better position to contest Wills they believe were not freely enacted.

What does undue influence look like?

A person susceptible to undue influence often in a compromised situation arising from a physical or mental vulnerability, like a nursing home resident or someone who is mentally incapacitated due to illness or old age. Situational factors, such as mourning the loss of a loved one, experiencing depression, anxiety, or another mental illness, and suffering from a serious medical condition, can also make a person susceptible to undue influence. These factors allow an influencer to manipulate the individual in order to gain their trust and, subsequently, control over their assets through their estate plan.

Common instances of undue influence

Some of the most common examples of undue influence include:

• Caregivers of the elderly who influence a testator to receive a legitimate heir’s inheritance.
• Adult children who threaten their parent(s) to receive more in the Will than their siblings.
• Stepparents who influence their spouse to increase their inheritance, therefore taking assets and monies away from the spouse’s heir(s).
• A service provider who creates a relationship with someone to then influence them to add them in their Will.
• Abusive family members or friends who try to stake a claim in the testator’s Will when that person had no intention of including those individuals as beneficiaries.

How to identify undue influence

Here are a few key things to watch out for if you suspect someone may be trying to exert undue influence over you or a loved one:

• They’re attempting to isolate the testator from their close family, friends, and others who may be seen as trusted advisors so they can become the most “trusted” person in the testator’s life.
• They’ve become more closely involved in estate planning when it isn’t their business.
• They ask to be added to financial accounts they were not previously authorized on.

How to counteract accusations of undue influence

If you tend to be the sole caregiver for your parent and they live in your home, provide access to your parent for your siblings. Even if you have a strained relationship with a sibling, allowing access to your parent can avoid your sibling from claiming undue influence down the road. Mending relationships with siblings and being transparent about what is going on with your parent and what their wishes are can also help avoid future claims.

Having written agreements with a parent or someone you are caring for can also help reverse undue influence. If you and the person you are caring for have an agreement, such as they will pay you $500 a week for your help, get that agreement in writing. Additionally, only accept payments via check, as a paper trail can help call out and void false undue influence claims.

One of the best ways to avoid undue influence is to create your estate plans independently, with the help of an experienced estate planning attorney. If you’re worried about undue influence from family and friends, or simply need help drafting your estate plans, contact the Law Office of Patricia E. Tichenor. Schedule a free half-hour consultation to discuss your needs.