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Having a valid, signed Will is incredibly important in case anything unexpected happens to you. This document outlines instructions for how to preserve, manage, and distribute your property and assets after your death.
Dying without having a Will in place, also known as dying intestate, could have major consequences for your loved ones and may result in your assets being mismanaged, or certain assets not being passed down to your intended beneficiaries. Here’s a brief overview of what happens when you die without a Will in the Commonwealth of Virginia.
What are the consequences of dying without a Will?
If you have not legally arranged for your assets to be passed to your loved ones, there can be serious and a potentially negative impact on them. Your assets may be given to people you never intended to receive them.
Your family may also incur costly and avoidable out-of-pocket expenses, including the costs of a bond, legal fees, and hefty probate taxes, as well as a variety of administrative headaches that could otherwise be avoided with proper estate planning. A sudden death without a Will can also cause tension within the family over who is responsible for your estate and what assets are distributed to whom.
How does the court handle probate without a Will?
Probate is the court process that supervises and ensures that the wishes set forth in a person’s Last Will and Testament are carried out. The executor named in the Will, who is typically a family member or legal appointee, is appointed to sort out the decedent’s assets, pay any applicable taxes and debts on their behalf, and then divide the remaining assets to the named beneficiaries in the Will.
Even with a valid Will, the probate process can take a long time to complete. That time is extended if a person dies without a Will, as the court must supervise a personal administrator to locate all your assets and determine all of your outstanding debts, and pay them, and only then determine who will inherit your remaining assets under a statute which determines all distributions based on a priority of blood relatives.
Should you pass away without a valid Will, your assets will be distributed by the court according to Virginia’s laws of intestate succession.
If you’re married
If you pass away with no Will and are married and have no children, your entire state will be inherited by your spouse. Those who pass away without a Will and are married with children born from a prior marriage will have one-third of their assets go to their current spouse and two-thirds of their assets go to their children from their former marriage. If all of the children are born of the marriage, then your spouse will inherit your entire estate, and your children born of your marriage to your spouse will receive nothing.
If you have children, but no spouse
People who have children but are divorced or do not have a spouse will have their entire estate pass to their surviving children in equal shares. Both biological and adopted children are entitled to the estate. However, stepchildren and foster children do not have inheritance rights. For them to receive any part of your estate, they must be explicitly mentioned in a Will.
If you’re unmarried and have no children
Those who have neither a spouse nor children who survive them at the time of their death will have their estate pass to their closest living relatives. First in line is a person’s surviving parents. If they have no parents, the estate is split evenly between siblings and continues to persons in your bloodline that you may never have intended to inherit from you.
This also means if you have an elderly parent who is using Medicaid to pay for long-term care, your failure to put a plan in place may result in them inheriting from you and being disqualified from their Medicaid coverage, and, in turn, losing their long term care unless they have enough personal assets from which to pay for their care until they are deemed to qualify again for Medicaid after a period of disqualification.
No heirs-at-law means your asset pass to the Commonwealth of Virginia
Finally, if a person dies without a Will has no surviving heirs-at-law under Virginia’s intestate succession statute, then the entirety of their estate will become the property of the Commonwealth of Virginia or otherwise be seized by the person’s creditors, which Virginia also allows to qualify as an administrator of a person’s estate if no one else seeks to be appointed for that person’s estate within nine months of their death.
Protect your legacy with a valid Will
Everyone should draft a Will to protect their estate and assets and secure their family’s future. If you need some guidance in writing and preparing a Will or any other estate planning documents, the Law Office of Patricia E. Tichenor can help. Schedule a free consultation to discuss your estate planning goals and needs and get started on drafting your Will.
When you’re making your estate plans, it’s important to understand the difference between the role of an attorney-in-fact under a power of attorney and an executor under a Will. While both involve appointing another person to carry out your wishes, their duties are slightly different and carried out at different times.
Read on to discover more about each of these essential estate planning designations and what to consider when drafting a Will or power of attorney.
What is an executor of a Will?
An executor carries out the wishes designated in an individual’s Last Will and Testament, (often called a “Will” for short), after their death. An executor is named in the written Will by the testator, who is the person to whom the Will belongs. When the Will is drafted, an individual may appoint co-executors to serve together, or appoint a primary and then an alternate, secondary executor. A person can amend their Will to change their named executor as many times as they want during their lifetime. After death, though, if the named executors are not alive to serve or decline to serve, then a court must appoint someone to replace them in order to ensure the wishes of the deceased person, as expressed in the Will, are carried out. When a person is appointed by the court, and not named in the Will, they are called a personal administrator.
What is a power of attorney?
A power of attorney (POA) is a legal document granting an individual, known as an “agent-in-fact” or “attorney-in-fact” or a “personal representative,” the legal right to make medical or financial decisions for another person, known as the principal, during the principal’s lifetime.
Under a POA, the attorney-in-fact has the capacity to act on behalf of a living principal where they cannot make decisions for themselves, such as in the case of incapacitation. The attorney-in-fact can have as much or as little hold over decisions as the principal allows. For example, you can allow your attorney-in-fact to have decision-making power over all of your financial affairs or give them the power to simply act on your behalf during the closing sale of a home.
What is the difference between a will executor and an attorney-in-fact?
The biggest difference between an executor and an attorney-in-fact is that the latter’s power to act on behalf of the principal exists only while the principal is still alive; once she or he dies, then all power to manage the estate of the deceased person passes to his or her executor under the Will. As soon as you die, your POA expires with your death, and the Will executor’s powers begin under your Will.
A POA is generally enforced if you are mentally or physically incapacitated and cannot make decisions for yourself. In this case, the designated attorney-in-fact will be able to carry out medical and financial decisions on your behalf. Once you pass, however, the appointed executor will carry out your wishes you have outlined in your Will.
Can an executor and an attorney-in-fact be the same person?
Yes, you can appoint the same person to be your Will executor and your attorney-in-fact. Many people choose this avenue since it’s a natural transition between making decisions for you in life and then carrying out your wishes after death. For example, an individual’s spouse or adult child can help them make financial decisions while they’re medically too incapacitated to manage their financial matters; and, if they die, that same spouse or child can then step in to administer the terms of their Will as the executor. For purposes of Probate, this is often the ideal way to handle matters in Virginia if the person who will be the beneficiary of your Will is also serving as the executor of your Will.
Considerations for choosing an executor
When choosing an executor, it’s important to choose someone who is up for the responsibility of handling the administrative paperwork it demands as well as fulfilling the wishes expressed by you in your Will. If your beneficiary is your sole beneficiary; however, it may be wise to also name them as the executor if they are an adult due to the fact that Virginia provides for expedited probate when the beneficiary is serving in both roles. If you can’t name your beneficiary to serve as the Executor, make sure to choose someone who will be able to go through the probate process and who you’re certain will be able to uphold your final wishes. You do not have to choose a family member and it is recommended that this individual has a good financial standing and is in good health.
Considerations for choosing an attorney-in-fact
It is absolutely vital that you choose carefully when appointing your attorney-at-fact in a POA agreement. This individual will have the power and accessibility to make crucial financial decisions on your behalf, which makes trusting this person a crucial component. Choose someone who is in good legal standing to be making these decisions for you. Rethink your decision if you’re unsure of whether a person will take advantage of the POA to benefit themselves.
Need help preparing a Will, power of attorney, or other estate planning document? Contact the Law Office of Patricia E. Tichenor to schedule a complimentary consultation with our experienced Virginia-based principal attorney.
Most estate planning advice you’ll find on the internet speaks to those individuals who are married and have a spouse and/or children to whom they plan to leave their estate. However, many individuals are now marrying later in life, opting not to remarry after a divorce, or never marrying at all — and their estate planning needs, while unique, are no less important.
Those who are unmarried might require a different approach to estate planning than their married counterparts. Here are six estate planning tips for singles.
1. Prepare powers of attorney
An important part of estate planning is ensuring you designate a person who can take care of your financial and medical needs if you cannot do so yourself. This person can be any family member, friend, or individual whom you trust enough to handle your affairs. You can appoint someone as your agent (called an attorney-in-fact) to manage financial or medical decisions for you using a power of attorney (POA) document. These are typically separate documents, with the financial POA being known as a Durable General Power of Attorney and the medical POA being known as a Durable Medical Power of Attorney (with Living Will provisions) or an Advance Medical Directive. Naming someone you can trust to properly manage each type of decision-making role for you is absolutely key, so make sure you choose wisely.
2. Plan for long-term care insurance
Long-term care insurance should be a top priority for both married and unmarried individuals. Very few individuals learn until it’s too late that Medicare does not provide coverage for long-term care beyond the first 90-days of rehabilitation services, and you can’t qualify for Medicaid unless you have less than $2,000 in assets in your name.
Long-term care insurance provides a form of added protection should your health care needs required 24-7 nursing care (in home or at a private long-term care facility) should you find your health compromised by a long-term illness (such as dementia, Parkinson’s, or Alzheimer’s disease). An unmarried person is not able to qualify to exempt more critical assets he or she may own, as compared to a married person, when it does come to applying for federal or state benefits. Therefore, it can be even more important that a single person take steps to obtain a long-term care policy and mitigate the loss of a lifetime spent saving for retirement only to have to spend every cent on such long-term care.
3. Learn all your options (a Will alone is not always best)
If you want your wishes to be carried out properly after you die, it’s best to understand the best tools available to accomplish those goals. This may be a Trust, a Will, and designation of beneficiaries on one’s financial accounts. A Will is just one tool (and not always the best one) that you can use to specify which relatives or friends (or even your pets) you wish to inherit your assets. Small or large, understanding how to use the tools available to you can ensure significant savings from legal fees, probate fees, or more. Virginia law, once you learn more about it, offers many ways to completely avoid probate, not just of your money or belongings, but, also your home.
4. Appreciate the difference between an agent and an executor
Powers of attorney are put in place for periods in life when you cannot manage your own financial or medical affairs; however, once you die, they die with you. This means the next person in charge of your assets will be your executor. Choose a trusted executor who will make sure to properly pay any final debts and expenses, know when to ask for help if they need it, and fulfill the remaining wishes you have set forth in your estate plan for any beneficiaries you name. It may be prudent to speak to the person(s) you select first, to ensure they are willing to serve in the role; and, it does not need to be a spouse or relative. An unmarried person may choose anyone they like, even a close friend, CPA, lawyer, or otherwise to serve as his or her executor.
5. Consider using a revocable living trust
A revocable trust can be a very flexible way to take care of other loved ones after your death even when you’re single, including nieces, nephews, or a family pet. You can serve as your own trustee during your lifetime. You can name a friend or family member to succeed you should you become too ill to serve or die. And, you can modify (amend) the Trust as needed over the course of your lifetime. You are the beneficiary of your Trust for your lifetime, which means if you do lose the capacity to manage your affairs, you have a trusted person who steps in to succeed you and who can use your Trust to protect your assets and make sure they are properly managed and spent for your needs until your death.
If you have children from a former marriage, you can also use the Trust as a way to provide for their needs during your lifetime, or leave them a home to live in (paid for by the Trust) after your death until they reach an age you select for the home to otherwise be sold. Have pets you love like children? A revocable trust can ensure they go to a good home while also being financially provided for during their lifetimes. Lastly, a revocable living trust allows you avoid the probate as assets held by or passing to your Trust at your death (meaning you named your Trust as a pay-on-death beneficiary) will not have to be reported to the court and cause needless additional legal costs and delays to reach your intended beneficiaries after you die.
6. Get help from an experienced estate planning attorney
Whether you’re single for now or never planning to marry (or remarry), the Law Office of Patricia E. Tichenor can help you with your estate planning needs. We’ve been serving Virginia residents for more than 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.