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.
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.
It can be difficult and even upsetting to plan for the unthinkable but putting some forethought into your estate planning can bring added comfort to what often is thought of as the “bureaucratic side of death” that your loved ones will experience should you pass away. No matter what age you are, there are some things you can do to start documenting your final wishes and the kind of legacy you leave behind.
There are incremental steps you can do at certain ages and stages of life to make an estate plan, and these steps will make the planning process far less daunting. Here are some expert estate planning tips for every age, from your 20s through your 60s and beyond.
Estate planning in your 20s
You may not have many assets in your 20s, but your estate plan should, at the very minimum, include using beneficiary designations on your financial assets (and even your home if applicable using a Revocable Transfer on Death Deed). In addition, you should ensure you have a financial power of attorney and healthcare power of attorney (POAs) in place to ensure if you’re injured, but not deceased, from an unexpected life event, you have the people you know and trust managing your financial or medical care decisions for you until you regain the capacity to handle those matters yourself.
POAs play a critical role for anyone at any age thinking of his or her estate plan. Your healthcare agent (also known as an attorney-in-fact) under your healthcare (or medical) POA is someone you choose to make medical decisions for you should you become unable to do so. This document can also include a healthcare directive or living will, which documents your end-of-life wishes if your injuries or medical condition become terminal and, in effect, irreversible (i.e., brain death). Your agent acting under your financial POA is someone who handles all financial matters, your mail, your taxes, and even (if applicable) business affairs if you are unable to handle them yourself.
In selecting a person to serve as your agent for a healthcare POA or a financial POA, you should select someone you not only trust but, also, someone who you feel is organized and sufficiently savvy to manage (or employ others if needed to help manage) your affairs.
As for your Will, if you don’t have major assets, a spouse, or children, a simple Will may be enough to cover what you currently have. However, it’s advisable to consult with an experienced attorney to find out whether this would be sufficient and whether avoiding probate entirely by using a different approach to your particular estate plan or assets is important (e.g., Do you need to provide for a pet or pets? Do you want to be sure that what you leave can pass to a specific family member who has special needs and is not able to manage what you leave them personally should they inherit directly from you?).
Estate planning in your 30s
Many people in their 30s have a long-term partner or are married. They may also own a home, have children, and have more substantial assets. When you need to consider protecting and providing for someone other than just yourself, it’s even more critical to prepare a well-thought-out estate plan and periodically review that plan to ensure you address any important changes in your life, your spouse’s life, or your children’s lives.
It may be a good time to determine whether a trust, sometimes called a Revocable Living Trust, is a better tool to use than just an ordinary Will, especially if planning for young children to ensure they are not only protected but that someone can provide for their day-to-day needs should you and your spouse no longer be alive.
Unlike assets left to beneficiaries in a Will, a trust protects assets owned by the trust or made payable at death to the trust from going through probate. It offers greater flexibility to provide for any minor children, while also controlling what happens with inheritance for children over 18 but not old enough (in many parents’ minds) to receive all of their inheritance at once. A trust can also be a useful tool to provide for the care of a beloved family pet (or pets). If you do have minor children, you will also want to grant power of attorney for a minor child or designate a standby legal guardian for them as part of your estate plan to ensure that if you and your spouse both become incapacitated and unable to care for them due to a medical or another issue, you have a trusted family member or close friend empowered to step in and protect your children’s interests.
Estate planning in your 40s
Many people begin accumulating more wealth and assets throughout their 40s. At this stage, it is a good time to start talking to family members about your plans. These conversations will be some of the most difficult discussions of the entire estate planning process. However, it’s better to start them early than leave your family in the dark about your estate plans. Make sure to inform your loved ones of asset distribution and your wishes for medical decisions and long-term care if you develop a health condition.
Additionally, put together a list and folder of important records and documents that disclose where an executor for your Will or trustee for your Trust can locate your assets, and indicate if there is a designated beneficiary on such assets. Include that person’s full name, date of birth, address, mobile number, and relationship to you (if needed).
Estate planning in your 50s
By the time you reach your 50s, you may want to look at estate plans made earlier in your life and update them to account for any life changes you may have experienced. Perhaps you sold a home, got divorced, or now have grandchildren with whom you’d like to share your estate.
Ensure that all documents, including your payable on death accounts (like a retirement savings plan) and powers of attorney, are up-to-date, and that you have clear plans outlined for how your loved ones should handle your affairs in case of incapacitation.
Preparing a folder or binder with all the necessary information, contacts, and documents in one place can help loved ones navigate your affairs. Many individuals even include a step-by-step guide to minimize difficulty and stress for their loved ones, especially if it would be their first-time being responsible for someone else’s legal affairs. This includes caretaking instructions for young children and family pets.
Estate planning at 60+
By the time you’re age 60 or older, your estate plan should all be in order. Beyond this point, it is wise to periodically review your documents for any possible discrepancies and update them as needed, especially if your health takes a turn or your family or financial circumstances change. This kind of regular maintenance can help address changes before they become emergencies. That way, your loved ones will know what to do when you pass away, and you can feel secure in the knowledge that your family will take care of your assets and distribute them according to the wishes set forth in your Will, Trust, or other estate planning documents.
However, if you have not yet gotten a chance to prepare your estate planning documents, you should prioritize them. Although this may seem a daunting task, you can ease the process by consulting a lawyer experienced in estate and trust planning who has helped thousands of clients with working through things step-by-step to help prepare the necessary documents.
Estate planning at every age in Virginia
Regardless of your age, your estate plan should always include an inventory of your tangible and intangible assets, your list of beneficiaries as well as what they should receive, and your financial and medical powers of attorney. In Virginia, you will need to have these items in writing and signed by two witnesses, and typically all of you in the presence of a notary public. Different copies of your documents can be kept in a safe place in your home, with your lawyer, and with your appointed health care POA agent, financial POA agent, executor, and (if applicable) the successor Trustee to a Trust.
Tangible assets can be any property you own, like furniture or jewelry, while intangible assets can be intellectual property or bank accounts. Consider any risks to your assets, such as overdue mortgage payments or property taxes. Your estate will need to cover those costs, which you should factor into your planning.
Depending on the size of your estate, the executor of your Will may have to contend with federal estate taxes, so plan ahead for those in the preparation of your estate plan. Although Virginia does not place an inheritance tax on those who live in the state when they inherit, you may have to consider an inheritance tax if your beneficiaries live outside of Virginia. To plan for those instances, look into the inheritance tax laws in the actual states your beneficiaries live in.
Get help with your estate plans at any age
Whether you’re creating your first Will or updating an existing estate plan, the Law Office of Patricia E. Tichenor can help. We’ve been serving Virginia residents for 20 years and can advise you on the best estate planning tools for your current assets and needs. Contact us to schedule your complimentary consultation today.