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.

Help! I Can’t Find My Loved One’s Will

cluttered desk looking for loved one's original will
What to Do If You Can’t Find a Loved One’s Will |

Every person should prepare a plan with regard to their estate, big or small, including drafting and getting expert advice on how to avoid probate otherwise, so that their wishes are honored by their loved ones when they pass away. However, the executor of a Will normally needs to have access to the original Will to record it (“probate the will”) and thereafter properly carry out the wishes and duties spelled out in the Will. This may present a problem during the probate process if you are unable to locate that original document.

What to do if you only have a copy of the Will

Like most states, the Commonwealth of Virginia requires a valid, original version of a Will to be filed with the decedent’s local probate court. Copies of a Will may be useful for family members to understand what their loved one wants to happen with their estate, but a photocopy typically is not admissible as valid during the probate process, and costly court pleadings and hearings may be needed if the only available document is a photocopy rather than the original.

There are some special instances when a copy of the Will may be admissible in court:

  • A copy of a Will may be accepted by a Virginia court if it has been proven as valid by another jurisdiction.
  • A copy of a Will may be accepted as valid if the original version was unintentionally lost or destroyed (such as by fire or flood), and all interested parties to the estate are in agreement that the copy is a true and accurate copy of the original document.

If a family wishes to submit a copy of their loved one’s Will, they must petition the court and prove that the original was not purposely destroyed or discarded by the testator to revoke it before their death. If the intent to revoke and destroy a Will can be successfully disproven, a copy of the Will may be probated and deemed as valid in Virginia.

What if I can’t find any copies?

Sometimes, a family member passes away without telling anyone where they kept their estate plans. Here’s what to do if you don’t know the location of your deceased loved one’s Will.

Check typical hiding places

The first step in attempting to locate a loved one’s missing Will is to check their home, particularly common hiding places most people tend to keep their valuables.

  • A filing cabinet
  • Desk drawers
  • Under the mattress
  • Old boxes of documents in a basement
  • Crawl space or attic
  • Safes

Each person organizes their belongings differently, so try to step into the mind of your loved one to visualize where they’d imagine an important document as a will would be most safe. It’s also true that sometimes people place important documents in odd locations in an effort to make them harder to find, so it never hurts to check random places like hat boxes on the top shelf of a closet, the freezer or between the pages of their favorite book.

Find out if your loved one had a safety deposit box

This avenue will take a bit more “elbow grease” than checking the deceased’s personal belongings but may yield positive results. If you find a key or can otherwise confirm your loved one had a safety deposit box, you’ll want to contact the bank to find out if you can access it and check for the Will. Be aware that depending on the bank, you may need to file a court order before you’re able to access the box.

Contact the attorney who drafted the Will

During a sweep of your loved one’s house — particularly their office or most important documents — check for paperwork or information from the attorney who may have drafted the missing Will. Check for letterheads, business cards and checkbooks (going back years or even decades) that reference a law office.

If you can find their contact information, reach out to the attorney or contact other financial or legal advisors your loved one worked with to chase the paper trail and find your next clue on where the missing Will might be.  The attorney can also be a helpful source of a clean photocopy of the signed Will, if no Will can be located, which then gives the family the opportunity to Petition the court to allow for the probate of the copy of the Will.

Talk to your loved one’s friends

In addition to sharing happy memories and grieving together, talking to your loved one’s friends about the missing will may afford additional answers. Start with their closest friends, as they may have been witnesses to the Will — or at least may remember the attorney’s name who created the Will.

Could the Will have been recorded in another state?

As a last-ditch effort, you may investigate if your loved one recorded their original Will after signing it. In Virginia, the Courts no longer permit pre-filing of a Will; however, if your loved one prepared their Will in another State and ultimately died in Virginia, which is then the place of probate, you might discover they recorded their original Will in the last state where they resided and prepared their Will.

Speak with an experienced estate planning attorney

If you’ve checked every nook and cranny in their house, asked every friend you can think of, can’t find a safety deposit box, and CPAs and insurance agents weren’t helpful, it’s time to hire an attorney who can help you determine how the estate will be settled and navigate the probate process for an intestate decedent.

If you or a loved one need assistance with estate planning matters, including navigating the Virginia probate process, The Law Office of Patricia E. Tichenor can help you. Contact us to schedule a complimentary consultation call today.

What Is a Power of Attorney?

power of attorney document with gavel and pen
What Is a Power of Attorney? |

If you’re new to the estate planning process, you may have heard the term “power of attorney” (POA) come up. However, you may not know exactly what that means or the authority that it grants.

Knowing what POA is and who to appoint to serve in this critical role should be a key part of any comprehensive estate plan.  Here is everything you should know about a power of attorney, and why you should designate someone to be your trusted POA agent (called an “attorney-in-fact”) as part of your estate plan.

What is a power of attorney?

In the simplest terms, power of attorney (POA) is a legal arrangement that allows a trusted person of your choosing to act on your behalf. The person chosen is referred to as the agent or attorney-in-fact, and they have the power to act in the best interest of the principal (the person who appointed them). The agent has broad legal authority to make legal decisions regarding the principal’s property, finances, medical care, or other personal matters, depending on the type of POA.

Power of attorney is typically granted as a plan for someone’s future incapacity, such as if the principal experiences an illness or disability where they are not physically and/or mentally able to sign off on important medical or financial decisions.  A POA agreement can end when the principal dies, revokes the POA, or the agent can no longer carry out their duties.  Without one, your family may end up incurring thousands of dollars, for years to come, in order to obtain a court appointment to serve as the guardian of your person and the conservator of your assets, not to mention the administrative paperwork these roles demand that creates enormous emotional stress for the person serving in these roles.

Types of POA

Not all POAs are the same, and not all of them have to do specifically with estate planning. There are four primary types that give the agent different types and levels of responsibility:

General POA

A general power of attorney gives an agent broad powers to act on your behalf, typically in a financial capacity. This person may handle financial and business transactions, pick up and open your mail, file your tax returns, renew or maintain your insurance whether medical, homeowner’s, or health insurance, settle claims, operate business interests, apply for federal or state benefits, and many other things that an incapacitated principal can’t attend to.

Special POA

A special power of attorney is when a principal outlines the specific legal powers they wish their agent to exercise. This is less common in estate planning and more common when the principal needs assistance for a single event or a limited time period with things such as a real estate closing, debt collection, and handling a specific business transaction.

Healthcare, Medical POA or Living Will

A healthcare power of attorney is when an agent is granted legal authority to make medical decisions on behalf of their principal. This can be invoked when a principal become suddenly unconscious, mentally incompetent, or is unable to make decisions on their own. A health care POA is not the same as a living will, though some states allow parts of them to be combined.  A “living will” refers to a document that authorizes that agent to make end of life decisions for you should your condition become terminal or your brain be injured to the point that you are diagnosed with having a persistent vegetative state coma.

Durability – Making your POA a Durable Document

If you become mentally incompetent due to an illness or accident while a POA is in effect, you can add a durable power of attorney provision to general, special, or healthcare POA to keep the arrangement going. You may also preemptively sign a durable power of attorney with conditions that state the POA cannot go into effect until you are deemed mentally incompetent by a medical professional.

Why do you need a POA in your estate plans?

A person should have a POA in place in the event that they become mentally or physically incapacitated during their lifetime. Like all estate planning tools, a POA is designed to give you peace of mind if the worst-case scenario were to happen. Without a valid POA arrangement, your medical and financial decisions may be left up to a doctor or a family member whom you do not wish to act on your behalf.

How to choose your designated POA

When choosing an agent to act on their behalf, most people name their spouse, an adult child, or a trusted relative, or even a lifelong friend. Some people choose to name more than one person to act in different power attorney roles, as maybe one person is better suited to handling financial matters while another is better with medical or caretaking decisions.  They do not need to be the same people nor agree on how to best handle affairs – though it helps if the two people get along and communicate well with each other.

While there are no specific qualifications for someone to act as your agent, you should choose someone whom you trust.

If you’re looking to create a power of attorney or handle other estate planning matters, contact the Law Office of Patricia E. Tichenor to schedule a complimentary consultation.

How to Find the Right Estate Planning Attorney for You

estate planning lawyer working with client
How to Find the Right Estate Planning Attorney |

Whether you’re drafting your first Will, creating a trust, or updating an existing estate plan, it’s important to work with a qualified estate planning attorney. But how do you find the right one for you?

If you’re a Virginia resident, here are some tips for vetting and hiring an estate planning attorney in your area.

1. Look outside your immediate city.

There may be a nearby estate planning attorney’s office, but that doesn’t mean you should limit yourself to the city you live in. Expert estate planning lawyers are located all over Northern Virginia, so don’t be afraid to broaden your search. In today’s era of virtual meetings, you can opt to work with the most qualified attorney instead of the one who is in the closest geographic proximity.

2. Check out the attorney’s blog and social media channels.

As you research different candidates, consider the quality of advice they offer on their website and in any published articles they have written. Attorneys with a solid blog and social media presence are typically invested in educating their clients and providing a good client experience.

3. Ask financial advisors or accountants for a referral.

Another good way to find a qualified estate planner is to ask for a referral from someone on your financial team. This could be your personal banker, financial advisor, or accountant. These people all have an intimate knowledge of your financial situation and may have additional insight on who has the experience to help you with your estate plan.

Even if they don’t have a full understanding of what your estate includes, they are still likely to have connections with other members of the financial community who can be added to your list of prospects.

4. Interview each prospective attorney.

Even if you find someone who has a portfolio of written work in the field of estate planning and they are highly recommended by your financial advisor, it’s still important to take the time to interview any attorney you’re considering.

Some questions you may want to consider asking include:

  • Where did you receive your degree?
  • How long have you been practicing estate planning law?
  • Who will be my point of contact and how will you communicate with me?
  • What is your rate and do you charge by the hour or a fixed rate?
  • How should I contact you if I have questions? Telephone, email, text, video chat?

Beyond providing satisfactory answers to these questions, it’s also important that you are able to establish a good relationship with the attorney you choose. An interview gives you the opportunity to discover whether you feel comfortable with each candidate.

5. Consult other types of attorneys.

Another way to find an experienced estate planning attorney is to ask for a referral from other members of your legal team. Attorneys who specialize in other fields such as business law or real estate can often offer recommendations from their extended professional network such as someone who works for their firm or law networking group.

Whether you’re looking for help creating your first estate plan or you have an outdated one that you want to update, it’s best to work directly with an experienced estate planning attorney to navigate the legal system and ensure your wishes are carried out.  We’d be honored to work with you to create a plan that protects your family. Schedule a free consultation with the Law Office of Patricia E. Tichenor to find out how we can help you.