The articles from The Law Office of Patricia E. Tichenor, P.L.L.C. are focusing on
the areas of Family Law and Estate Law, and range of other legal areas.
Estate planning involves choosing a person to carry out your final wishes in your Last Will and Testament (Will). Many people choose family members, such as a spouse or adult child, as their executors, but relatives are not the only option.
For individuals who don’t have or want a family member to handle their estate, here are some alternative third-party options to explore, like a trusted friend, attorney, CPA, or financial institution.
Who can serve as an executor?
To become an executor of an estate in the Commonwealth of Virginia, a person must meet the following criteria:
- Must be over 18 years of age.
- Must not have been convicted of a felony.
- Must be a resident of the United States.
- Must have not been determined as incapacitated by a court of law.
Why look for third-party options?
There are a few common reasons an individual may look for an executor outside of their family. Sometimes, they have outlived their family members during their lifetime, or the remaining family members are incapacitated and do not meet the requirement to serve as executors. Some individuals may have estranged relatives or dependents. Though they may be a named family member or beneficiary in the Will, an individual may not want them in charge of carrying out their wishes.
If all of your family members live outside of Virginia, they may struggle to serve as executors because they’ll need to travel or find someone else local to fulfill duties such as preparing and selling your home or securing valuable assets after death.
Yet another reason to look for alternative executors occurs when there are concerns that multiple family members may fight amongst one another if named as co-executors or be unable to reach compromise on important decisions regarding the administration of the probate estate. In these situations, an individual should consider appointing a third-party, non-family member to serve as executor in order to keep things as civil as possible during the probate of the estate.
Lastly, if you named a family member to serve as an executor but they’re found to be incapacitated upon your death, the court will appoint the next or alternate person named in the Will (which could be a third-party representative).
Alternative options for an executor
- Certified Public Accountant (CPA): Appointing your CPA or a Certified Financial Planner as your executor may be an optimal choice as they are already familiar with your financial situation including your assets, debts, and the value of your estate. An experienced financial advisor may also have knowledge of the probate process and be able to keep everything on track as your estate runs through probate courts.
- Public administrator: A public administrator, including an experienced lawyer, could make the probate process easier on loved ones as they are impartial and have experience supporting Wills through the probate process.
- Financial institutions or corporate fiduciaries: A financial institution is another impartial choice to serve as the executor of your estate. A corporate fiduciary is a financial institution, trust company, or other corporation that has been given permission to carry out an estate, act as a trustee, or settle estates. In Virginia, trust corporations and companies can administer estates; however, the corporate executor must have the ability to do business in Virginia to be appointed as an executor.
- A friend: Trust goes a long way when appointing an executor. If you have a long-time friend you trust who has qualities such as great organizational skills, comprehension, and responsibility, you may want to appoint them as the executor of your estate.
No matter who you select as your executor, it’s important to discuss the arrangement with that individual or entity before you name them in your Will. Once you’ve spoken with your chosen executor, continue to update them with any changes to your estate plans so they can stay up to date on your final wishes.
Looking for help with estate planning in Northern Virginia? The Law Office of Patricia E. Tichenor has helped Virginia families plan ahead and address their unique estate planning needs for over 20 years. Schedule your free consultation with us today.
Do-It-Yourself (DIY) estate planning is often the first considered option for those looking to save money. However, because of the complexity of estate planning laws, DIY-ing your Will, trust, or other estate planning documents without the help of an attorney is a risky endeavor.
Below are just a few of the many reasons why estate planning is best done in collaboration with an experienced legal professional.
1. Creating valid Trusts, Wills, and other documents is difficult.
Proper estate planning often requires the drafting of several documents detailing the handling of your assets not only if you die but, also, if you become too incapacitated to manage those matters on your own. For most people, their first thought is that they only need a Will; however, there are many excellent tools beyond (and better than) using a Will which can serve to protect you and protect your loved ones if you are incapacitated or die.
In addition, as you acquire new and different assets, or the value of your assets increases, it is critical to ensure that you understand the pros and cons of the kind of estate planning document to use in order to leave these to any beneficiaries. It is also important to understand what happens if your assets are inherited by someone who is still a minor child (under age 18) or a person with special needs. To ensure your wishes are carried out properly (and, where possible, with the least tax and administrative burdens for your loved ones), it is best to consult with an experienced estate planning attorney to determine what type of planning is best suited to accomplish your goals and to update that plan periodically (at least every five years in some cases).
Many individuals opt to prepare something called a Revocable (Living) Trust as part of their estate plan. Trusts can eliminate the administrative and financial burdens that normally happen with using a Will alone, by removing the need for court supervision and filings as part of what is commonly referred to as “probate.” Trusts also allow you to control from the grave the timing of when your assets get distributed, such as providing for an installment-like plan for younger children that staggers what they receive from the Trust to various ages and ensures that they are more mature and better able to handle what you leave to them.
Both Wills and Trusts are highly technical documents and must adhere to ever-changing statutory requirements to be considered valid. Enlisting the help of a professional to draft both documents will ensure your loved ones have no issues administering your estate after your death.
2. You may not fulfill signature requirements.
In Virginia, a valid Will must be signed by the testator — the person who created the Will — and at least two competent adult witnesses who are not beneficiaries of the estate. Your Will is invalid if:
- The witnesses don’t sign the Will in the presence of the testator.
- One or both witnesses are your beneficiaries.
To avoid making these mistakes, notarize your Will with a notary public and two witnesses not related to you by blood or marriage, which is often handled most effectively with an experienced estate planning attorney.
3. You may not know how to set up the proper funding for your trust(s).
If you’re interested in drafting a revocable living trust, you need to do more than sign the trust document. You need to “fund” your trust and designate it as a beneficiary on certain assets, so that those will pass through your trust (not probate). If your trust is not funded correctly, your beneficiaries may have to go through probate court, and incur probate taxes, to receive their inheritance.
4. Generic DIY forms may not adhere to state-specific laws.
One of the most challenging aspects of estate planning is accounting for state-specific requirements the probate court must abide by. State regulations are particularly stringent regarding property — domestic or international — and business assets.
Virginia has specific laws regarding estate planning that a DIY tool’s generic form does not always account for. Enlisting the help of an experienced estate attorney ensures your estate adheres to the nuances of your local estate regulations.
5. You may not know all of your available estate planning options without an expert’s insight.
Because every estate is unique, you should hire an experienced professional to create a valid and viable plan that suits your circumstances. For example, an attorney may suggest using alternative probate avoidance tools you may not realize exist, which might still avoid probate even if you don’t have the attorney prepare a Revocable (Living) Trust. This includes using beneficiary designations and a revocable transfer on death deed. Whatever your specific situation entails, you want to use an estate planning strategy that is unique to your needs. DIY forms are often too generic for that purpose.
6. You don’t have an objective third party to help you make the best decisions for your estate.
DIY estate planning tools may give you a foundation for creating your estate documents, but they cannot account for your specific needs. For example, you could forget to list certain assets or fail to incorporate particular stipulations in your trust directives.
An experienced estate planning attorney can help tailor your estate plan to your specifications. They can also review your assets to accurately document and account for every detail, and help you eliminate any “blind spots” and biases you may have as you’re considering how to divide up your assets.
Get help with your estate plan
Work with an experienced estate planning attorney to ensure your legacy is passed on precisely as you want. The Law Office of Patricia E. Tichenor, PLLC, has more than 20 years of experience serving the needs of Virginia families. Contact us today or book a free consultation for help with creating or updating your estate plans.
For many pet owners, pets are part of the family. Those who are new to estate planning often ask how they can ensure their pet’s long-term care needs are met in the event of the owner’s sudden incapacitation or death, including who will provide for the pets and how that care will be financed.
In the Commonwealth of Virginia, you can create a dedicated trust to provide funding and/or assets specifically earmarked for pet care. Here’s what to consider if you think you may want to take advantage of a pet trust.
What is a pet trust?
Because pets are legally considered property, you cannot name them as direct beneficiaries of your estate, as you would for a spouse, child, or another relative. However, without some kind of estate planning provision for pet care, a person’s animal could end up in the hands of an unintended family member or a shelter.
The way around this is a pet trust, a legal arrangement that allows you to earmark certain assets for the care of your pet that can only be accessed and used by the person you designate as your trustee. When you create a pet trust, you can designate where you want your pet(s) to live if you are unable to care for them, ideally with a trusted friend or family member. Trusts need to be funded, so you will also set aside money to be passed to a trustee specifically for the care of the animal(s) covered. The trust remains in effect until the animal’s death (or the last surviving animal, if multiple are covered).
If you cannot find a person who is willing to take care of your pets, there are programs where you can send your pets to a giving caretaker. These include SPCA programs, veterinary school programs, and private rescue organizations. Before including one of these options in your estate plan, contact your desired organization to understand what specific instructions should be left in your Will to ensure your pet is safely delivered to the right party upon your death or incapacitation.
Benefits of a pet trust
There are many reasons why a pet owner might consider creating a dedicated trust for their beloved animal(s).
- You’ll gain peace of mind about your pet’s well-being. Pet trusts give you an opportunity to write out specific directions for how your animal(s) should be cared for in your absence. For instance, you can specify how frequently they should visit the vet, their level of exercise, and what food they eat.
- Your trustee is legally bound to follow your wishes. Without a pet trust, it is not guaranteed that your pet will receive the care you intend after your death. A pet trust creates a legally-binding obligation for the trustee to follow its instructions, meaning a court can intervene if it is discovered that the trustee has breached the terms of the arrangement.
- Your loved ones won’t be financially burdened by caring for your pet. A pet is a big financial responsibility, and a family member or friend who “inherits” a pet may be concerned about their ability to finance ongoing care. With money set aside in a pet trust, your designated caretaker can pay for the animal’s vet visits, medication, food, shelter, and anything else they may need, without dipping into their own pockets.
How to create a pet trust
Like any other type of trust, it is best to consult with an experienced estate planning attorney when considering a pet trust as part of your estate plans. Here are a few things you’ll want to discuss with your attorney to create your trust:
- If you have multiple pets, which ones will be covered by the trust?
- Who will be the primary trustee and caregiver for your pet(s)?
- How much money will you need to fund the trust for the duration of your pet’s life?
- How do you want your trustee to use the money you’re setting aside for the pet’s care?
Are you a Virginia resident wondering if a pet trust could benefit you and your furry family members? The Law Office of Patricia E. Tichenor can help. Schedule a free consultation to discuss your pet care estate planning questions and needs.