What Is a No Contest Clause?

last will and testament

What Is a No Contest Clause? | NOVAEstateLawyers.com

If you’re afraid your heirs might challenge your Will, you can add a no contest clause to protect your wishes.

With this clause in your legal arsenal, your beneficiaries likely won’t risk challenging your Will and losing everything you left them. They may, however, first seek a court judgment as to whether a claim would trigger this no contest clause (as recently issued in the case of Hunter v. Hunter).

Here’s everything you should know about a no contest clause and how it’s enforced in Virginia.

What is a no contest clause?

In a Will, a no contest clause — also known as an in terrorem clause — is intended to prevent beneficiaries from challenging any terms. For instance, let’s say you have a child who is a bit of a spendthrift. If you leave them $20,000 and they challenge the Will to try to get more and end up losing, they no longer have the right to claim even just the $20,000 under the terms of the no contest clause.

Most of the time, these clauses make clear that if a beneficiary does decide to challenge the Will (and loses), they will not receive anything allotted to them. However, some states include caveats to the clause that make it unenforceable, thereby minimizing its influence in such conflicts. These laws exist to ensure that the writer of the Will maintains control over the contents as they are outlined, discussed, and eventually distributed to its recipients.

No contest clauses under Virginia law

In regard to Virginia’s specific statutes surrounding no contest clauses, there are key factors to remember. Many of the no contest clauses are written broadly, with some even choosing to include a disinheritance if any challengers take actions that could interfere with the administration of a person’s estate or trust. More often, no contest clauses are drafted in a narrow manner and only directly apply to challenges of a Will or trust.

An ongoing discussion about Virginia’s no contest clauses comes down to whether a no contest clause closely adheres to Virginia’s state laws. If a no contest clause is drafted with broader wording, it is more likely to be challenged in court. In contrast, a carefully drafted no contest clause leaves little room for any beneficiaries to find a good enough reason to challenge your Will.

In the case of Hunter v. Hunter, the Virginia Supreme Court approved of an alternative-pleading model for trust beneficiaries. The beneficiary may first seek a declaratory judgment from the court to determine whether their proposed challenge would trigger a no contest clause, and then decide whether to proceed with prosecution. In practice, this ruling can clarify the terms of the no contest clause, potentially reducing the likelihood of your Will being challenged in court.

Why would you use a no contest clause?

No contest clauses could be useful should you choose to make some last-minute changes to the Will. Generally, the best reason to insert a no contest clause, should this problem ever arise, is if you have good reason to be afraid that a close (and most likely disgruntled) relative would contest the contents of your Will after your death.

Additionally, including a no contest clause leaves you more room to make the changes you wish to your Will and estate administration without worrying about having it questioned or changed in a way that is unsatisfactory to you.

Need help drafting a no contest clause to include in your Will? Contact the Law Office of Patricia E. Tichenor to schedule a complimentary consultation.

How to Decide Who Gets What in a Will

older couple signing a will

How to Decide Who Gets What in a Will | NOVAEstateLawyers.com

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.

A Guide for Issues and Considerations for Wills in Blended Families

blended family - mother with two sons

Wills for Blended Families | NOVAEstateLawyers.com

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.

How to Update Your Will When You Move Out of State

moving out of state - update estate plan

Updating Your Will When Moving Out of State | NOVAEstateLawyers.com

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

Tax domicile

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.

Divorce

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.

Out-of-state executor

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.

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 | NOVAEstateLawyers.com

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.

The Law Office of Patricia E. Tichenor, P.L.L.C.
Professional Legal Services or Legal Representation
(703) 669-6700

Contact