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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.
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.
New Year’s Resolutions offer us the chance to reflect on the previous year and make informed personal or professional decisions about our lives moving forward.
We recommend you start the new year off prepared by adding estate planning resolutions to your list. Having an organized, comprehensive plan will ensure that your estate and assets be distributed to your family and friends. While losing a loved one can be extremely painful or difficult, estate planning doesn’t have to be. Here are seven important estate planning resolutions to make for 2023.
1. Draft a Will if you don’t already have one.
A valid Will is a document that directs, under the supervision of a probate court, how you want (and to whom you want) to distribute your property and financial assets when you die. Without one, you may open your family up to unnecessary expense and stress, and see your assets pass to persons (or even your creditors) in a way you would never have wanted. In your Will, you should name a trusted executor (such as a spouse, family member, close friend, or, in certain cases, an attorney or CPA), who is willing to be responsible for overseeing the management of your assets after your death.
2. Create a revocable living trust.
A revocable living trust is another estate planning tool that aids in the transfer of property. A revocable living trust can be adjusted at any time during your life and preserve certain assets for specific reasons important to you, such as keeping the family home for your children to continue to be raised in if both you and your spouse die. If you have minor children, a revocable living trust allows you to designate how their inheritance and finances will be managed until they reach an age (or set of ages) you feel most comfortable giving full control to them over their inheritance.
3. Update your powers of attorney, executor, and/or beneficiaries if any family circumstances have changed.
Ideally, the person(s) you name as attorney-in-fact under your powers of attorney and executor in your will is someone you trust to keep your best interests at heart. Unfortunately, your initial choices for these roles may not always remain the same.
A designated attorney-in-fact or executor should be changed in your estate plans if the chosen individual passes away before you, or if other recent circumstances (divorce, bankruptcy, a falling out, etc.) make you feel that they should not be involved in carrying out your final wishes. Be mindful not to appoint someone who could abuse this privilege for selfish reasons.
Similarly, you may want to review your list of beneficiaries to ensure that your selections reflect your current circumstances. For instance, if you are recently divorced, you should review your will and change anything that may be associated with your ex-spouse and their family.
4. Make sure you’ve appointed a legal guardian for any minor children.
No parent wants to think about what would happen if they pass away or become incapacitated while their child is still a minor. However, this is precisely why naming a legal guardian in your Will is so important.
Typically, if you die before the child turns 18, your child’s other parent becomes the legal guardian and assumes responsibility for that child’s care and well-being. If you both pass away (or if the other parent is not involved in your child’s life), naming a legal guardian or guardians in your Will ensures that important decisions about your child’s future are not left to a court or Department of Social Services.
5. Organize your digital assets.
When going through the estate planning process, sorting finances or personal matters may be top of mind. However, organizing your digital assets should be just as important.
Nowadays, it’s common for many people to secure personal information online, whether that be through emails, social media accounts, or even the notes app on a smartphone. To ensure a secure transfer of accounts post-mortem, there are steps you can take in preparation.
Start by recording all digital assets and their respective passwords and decide who will be responsible for the information after your passing. Saving sensitive files to an external hard drive or backing the files up to a cloud-based storage solution guarantees your most important files will be saved.
Many states may also have specific requirements when it comes to digital assets, so it could be helpful to work with an attorney to update documents accordingly. Follow our helpful checklist to ensure your digital assets are as secure as possible.
6. Take steps now to make your future executor’s job easier.
Your future executor plays a large role in how your estate will be handled. Organizing certain documents and having important conversations in advance can help make the executor’s job easier when the time comes.
The first step is to plan ahead and make sure your executor knows that you’ve chosen them and where they can find all important documents. Having these documents in order makes for a smoother transition. Give your executor time to go through them in case they have any questions. Any major life events from the time of designating an executor to the time of death should be noted, including divorce, a new marriage, etc.
Finally, your finances should be in order. Having a list of assets makes it easier for your executor to pay off any outstanding debts. Working with an experienced attorney to draft these documents will ensure an easier transition.
7. Review your entire estate plan and consider whether you need to make any changes.
Your life circumstances can change a lot in a few short years, so be sure to review your entire estate plan and consider whether you need to make any changes, especially if you have yet to do so recently. When making these updates, ensure that all your retirement accounts, joint properties, life insurance, and beneficiary designations are recent.
Major life events may include getting divorced, remarried, adopting a child or giving birth, death of a spouse or a child, incapacitation, death of a designated beneficiary, a personal health decline, or a significant change in assets. If these don’t apply, it may still be beneficial to review your estate plan annually to reflect your most up-to-date wishes. The more current your estate plan, the easier it will be for your executor to carry out your requests.
It’s important to determine whether the state you live in has any special requirements for updates to your estate plan, and working with an experienced attorney can help.
Get help keeping your estate planning resolutions.
The best way to keep your 2023 estate planning resolutions is to work with a knowledgeable estate planning attorney. The Law Office of Patricia E. Tichenor, P.L.L.C. has over 20 years of experience serving the needs of Virginia families, and we can help you with creating or updating your estate plans. Contact us today for a free consultation to learn more.