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.
Depending on your family dynamic and life circumstances, estate planning can be a challenging and even uncomfortable task. It’s difficult enough to contemplate your own mortality, let alone planning out who in your life should receive your money, property, and possessions after you die.
If you’re struggling to figure out how to divide up your assets and choose who inherits from your estate, here are a few helpful hints for people in different family circumstances.
How to determine your beneficiaries
For couples with no children
If you and your spouse don’t have children, a Simple Will — one in which all your assets are automatically inherited by your surviving spouse — can seem like the best and easiest solution. However, it’s important to consider whether you might want other family members, such as parents, siblings, nieces/nephews, cousins, close friends, and other parties, to directly benefit from your estate after your death. Consider this carefully and prioritize your potential beneficiaries based on their level of need and your personal relationship with them.
For couples with multiple children
Couples and individuals with just one child typically leave the majority of their estate to that child. However, inheritance can quickly become tricky in families with multiple children.
Generally, it is best to divide your assets, including real property, vehicles, and other high-value possessions, equally among your children, as this will limit family conflict. When divvying up different assets, it is also important to consider what will mean the most to each child, both emotionally and financially. The overriding principle should be the promotion of family harmony.
If you do decide to leave your children different amounts of your assets (or disinherit them in favor of another important person or entity in your life), it is important to make your reasoning clear, both during your lifetime and in the language of your Will. One of your children may attempt to challenge the Will in probate court after you’ve passed away, which is why it is important to create a Will while you are still of sound mind and body, avoiding undue influence from your children.
A no-contest clause — which stipulates that anyone contesting the Will forfeits their inheritance — can help discourage challenges to your Will during the probate process.
For couples with a blended family
Blended families are becoming more common, so you’ll want to make sure all your estate planning documents reflect your specific situation and relationships with your children and/or stepchildren. For instance, you might decide to leave specific assets directly to your biological child(ren) to ensure they receive their fair share of your inheritance, while the remainder of your estate goes to your spouse to care for their own biological children.
If you currently have any minor children or stepchildren, setting up trusts can be helpful to ensure assets are properly managed and distributed until those children reach adulthood.
To make your wishes clear, be sure to communicate with all beneficiaries to set expectations and avoid family conflicts after your death.
For single individuals with no children
Even when you don’t have any immediate heirs, it’s important to create a Will and choose beneficiaries to avoid a probate court bequeathing your assets to family members whom you may not wish to inherit from your estate. Without a valid Will, Virginia’s intestate succession laws will determine your beneficiaries in a specific order, regardless of your personal relationships with your relatives.
When choosing your beneficiaries, make sure they are current and clearly indicated through the language in your estate plans. If you don’t wish to leave your estate to individual people, you might consider creating a trust to supplement your Will. For instance, you can set up a Pet Trust, in which a (human) trustee is legally entrusted to use your assets to care for your beloved pet(s) after you die. Or, if you want to leave your assets to a meaningful organization, you can set up trusts like a charitable remainder trust or charitable lead trust.
Get help developing your estate plans
If you or a loved one need assistance with estate planning matters in Virginia, including writing a Will, The Law Office of Patricia E. Tichenor is here to help. Contact us to schedule a complimentary consultation call today.
These days, blended families are becoming more common, and the structure of families is looking increasingly less nuclear. A typical family may have natural children, stepchildren, ex in-laws, and other extended relatives who may or may not still be involved in each other’s lives.
Because blended families have previous relationships and ties outside of their current family unit, it’s important to understand how to navigate the uncertainties of estate planning for your unique situation.
What is a blended family?
Blended families are families in which two partners share a life together with children from one or both of their previous relationships. Every blended family looks different; one may involve a person with children marrying someone with no children; another could involve divorced parents or widowers who both have children and marry later in life.
These complex relationships and the increased number of family members in blended families might create some confusion and issues when drafting an estate plan, especially if one or both spouses has an old estate plan drafted during their previous marriage. It’s critical to be aware of these potential issues and set solutions in place as you write your Will or other estate planning documents.
Estate planning considerations for blended families
Simple Wills can cut children out
In a scenario in which both partners have children from separate relationships, it’s possible for the children of one partner to be completely cut out of an inheritance after the other partner dies. If one spouse leaves all their assets to their partner in the form of a simple Will and then dies, their surviving partner could change their Will to leave their entire inheritance to only their biological children. This scenario tends to be most common when one partner passes decades before the other and then the surviving partner remarries or becomes estranged from their partner’s children.
If you and your spouse both have children from previous relationships, you may wish to each write a Will that specifically leaves assets to your respective children after your death to ensure they receive an inheritance. You may also want to name your children to serve as Executor of your Will rather than your spouse, to ensure that dispositions are honored as written and without delay.
Look into creating a trust
A trust is a legal relationship in which a person or grantor gives another party, known as the trustee, the responsibility of holding and managing assets for the grantor’s beneficiaries. This is an important estate planning tool for parents who want to ensure their children are taken care of should they pass away. While this may seem important only when children are minors, it can be equally important if a spouse remarries and wishes to provide a lifetime trust plan for their surviving spouse while ensuring that what remains unused by them will pass to their children, and to assign a percentage or specific assets of their estate to pass directly to their children rather than their spouse at their death.
A trustee can be another person, the grantor’s legal representation, or a neutral third-party, like a bank. It’s best to choose a trustee that does not have a personal connection to you, your spouse, or either of your children. A co-trustee arrangement, naming the spouse and one of the deceased’s children, may also work if that child and the spouse are able to work together to fulfill the intentions of the deceased as set forth in the trust provisions.
Creating a trust makes sure that your money and property can go to your children when they are mature enough to manage it themselves, or delayed into later adulthood to give them a nest egg when they might need it most. The trustee is responsible for distributing these assets, not your spouse. Once your minor children come of age, the trustee can bestow the assets to the beneficiaries.
Speak as a family
Creating an estate plan for your blended family can become complicated. There are so many different parties involved and sometimes their interests may be conflicting. This is why when any changes are made to a Will, all of the affected parties should be notified.
When drafting a Will, families need to ensure that there is meaningful and clear communication amongst all parties. Everyone’s concerns must be addressed, even if that means disappointing some people.
Get help with your blended family’s estate planning needs
Creating an estate plan for your blended family? Contact the Law Office of Patricia E. Tichenor to schedule a free consultation and discuss your specific situation.
There are a few important life events that warrant a review and update of your estate plans. One such event is moving to another State.
Each state has its own unique probate and estate planning laws. This means you may want to consult with an attorney if you move to another State so ensure that your existing Will can be easily administered as-is in your new home State, or if some changes may be needed.
If you’ve recently moved to Virginia from another State, here are a few things you’ll need to consider when updating your Will.
Common estate planning issues when moving across State lines
A person’s tax domicile is where they are considered a primary resident for tax purposes. Your “domicile” State is one in which you have clear roots — e.g., owning property, having a valid in-state driver’s license, registering to vote in that state, etc. If you move to Virginia and intend to claim it as your tax domicile, having an old out-of-state Will may work against you. Establishing a valid Virginia Will with the help of a local attorney (along with updating your other legal documents and registrations) can help cement your new home state as your legal tax domicile.
Witness and wording requirements
Regardless of where you drafted it, a Will typically needs to have a competent witness or witnesses sign the document in front of the testator (the person who wrote it) for it to be considered valid. In Virginia, a Will must be signed by two competent individuals, who may or may not be direct beneficiaries of that Will. In other States, a beneficiary cannot serve as a witness. The precise wording of a Will is also important, and phrasing requirements for drafting certain clauses may differ from state to state.
Although the “Conflict of Law” rule in most States validates an out-of-state Will so long as it is executed according to the original State’s laws, the probate process will likely be easier for your loved ones and your executor if you create an updated Virginia Will. A local attorney will be able to help you understand and comply with any Virginia witness and wording requirements that differ from those of your previous home state.
Estate planning after a divorce is handled differently on a state-by-state basis. In some states, divorce revokes a Will, but in others, like Virginia, divorce only revokes any benefits or executorship duties given to an ex-spouse. If you got divorced in a state that automatically revokes a Will post-divorce, then moved to Virginia and died here without updating your estate plans, your current Will would not be considered valid in either State.
A divorce is another life-changing event that should warrant a review and update of your estate plans anyway, so if you recently moved to Virginia following a divorce, it’s a doubly good idea to draft a new Will.
While your chosen executor does not have to live in the same State where you draft your Will, you may wish to update this designation in your estate plans when you move for practical reasons. Serving as an estate executor can be a complicated and time-consuming endeavor, and it may be easier to choose a local attorney or relative who can carry out their duties without extensive travel to and from Virginia.
Consult a local attorney to ensure your Will complies with Virginia laws.
If you move across State lines, it’s essential that you work with a local attorney to understand how the state’s laws will affect the way your Will is carried out. If, for some reason, you pass away after moving to Virginia and your out-of-state Will is deemed invalid, your wishes may not be carried out as you intended.
If you’ve recently moved to Virginia and need to update your estate plans, contact the Law Office of Patricia E. Tichenor to schedule a free consultation to discuss your circumstances.