You’ve Been Named as Estate Executor – Now What?

last will and testament document

An Overview of the Virginia Probate Court Process – NOVAEstateLawyers.com

If you’ve been named as executor of your loved one’s estate, you will serve a key role in the probate court process, which is how assets of a deceased individual’s assets that pass through a will reach any named beneficiaries therein.

Probate is necessary to ensure, first, that a decedent’s final debts and expenses are paid, and, second, that the beneficiaries named in the will receive their inheritance. Under court-supervision, an executor is responsible for overseeing this process.

Executorship is a big responsibility, and it can seem especially overwhelming during this already difficult and painful time for you and your loved one’s other living relatives. This step-by-step guide will help you understand the probate court process in Commonwealth of Virginia, including the initial forms to file and how to prepare for your meeting with the probate court clerk.

Note: This guide covers the basic probate process when the decedent (deceased individual) left a valid last will and testament. If your loved one died intestate (without a valid will), you should consult with an experienced probate / estate planning attorney for specific guidance related to your particular matter to understand the probate process for an intestate estate.

1. Determine which court forms you’ll need and where to file them.

With a few exceptions, Virginia’s probate process is controlled by required PDF court forms issued by the Virginia Supreme Court.  Some Circuit Courts also have their own customized, specific forms for their local Court, so it is always smart to contact your local Circuit Court to ask for any specific website address that they may have to link you to their local forms.  In Virginia, Probate Matters are under the supervision of the Circuit Court in the city or county where the decedent resided at the time of his or her death, especially if they owned property in that city or county.  However, if they did not own any real estate and died in a hospital, then there may be grounds to file for probate in the city or county where they died. Each Circuit in Virginia has an arm of its court called a Commissioner of Accounts, who handles the ongoing supervision of the filings with the Court.

If your loved one owned more than one residence in Virginia, you’ll file in the local court of the city in which they last resided. You’ll also need to record a certified copy of the original will in the city or county where their other properties are located.  However, real estate itself does not go through Probate automatically in Virginia, and it is prudent to contact an experienced Probate attorney to determine how to handle any and all real estate of the decedent before you file anything with a local Circuit Court related to the probate process.

After you consult an attorney, to ensure you know the right next steps and what asserts will actually need to be reported to the Circuit Court, you (or your attorney) locate the applicable “Forms for Decedent’s Estate” on the appropriate local Circuit Court’s website needed to begin the qualification process to serve as Executor and prepare for the initial reporting process for the assets that will flow through your loved one’s Probate Estate.

While there are several optional forms you can file (including a waiver of executorship affidavit, if you wish to decline your duties), the most common forms you initially need to prepare are as follows:

  • Probate Information Form
  • List of Heirs
  • Notice Sent to Heirs and Beneficiaries
  • Probate Tax Return Form

You will need to prepare the forms above before your first meeting with the probate clerk at the Circuit Court where you are filing (see Step 2).  Some local Courts, like Fairfax Circuit Court’s Probate Division, will actually help you with all these forms as long as you call them to schedule an appointment with their office.  Appointments can take 2 months or longer to schedule as this Court is one of the busiest in the Commonwealth. This is why it is best to contact the local Probate Clerk of the Circuit Court where you believe you will be filing to ask them about their specific process and how soon you may schedule a qualification meeting with them.

2. Schedule a qualification meeting with the local probate clerk.

Once you have completed the forms from Step 1, you will attend an initial qualification meeting to be sworn in by the Probate Clerk to serve as Executor for the Estate.  You may also need to obtain a bond, if bond has not been waived in the Will or if you are not a resident of Virginia, so make sure you know what is expected of you by the Court before this meeting (see Step 3). You also must bring a valid driver’s license or passport as well as your checkbook to pay any applicable filing fees and initial probate taxes. Once you are qualified, you can then reimburse yourself from the Probate Assets that you will be located, depositing, and managing under a new bank account called a Probate Bank Account.

3. Apply for a probate bond and appoint a local registered agent (if you’re a non-Virginia resident).

If you plan to be the Executor of an estate but are not a resident of Virginia, you must apply for a probate bond, which is local insurance company that guarantees your services Executor.  You’ll also need to appoint a Virginia resident to serve as a local registered agent for you, using a Consent of Non-Resident Fiduciary form.  Sometimes, if you hire a local Virginia attorney to help you, they can agree to serve as your local agent in Virginia for this purpose.  Be aware that if you are a convicted felon or have filed for bankruptcy, you may not qualify for a bond and may also have to resign to serve as the Executor in favor of one of the alternate Executors named in your loved one’s Will.

4. Get a tax identification number from the IRS and set up a probate bank account.

At the end of your initial qualification meeting, the Court will issue you what is known as a Letter of Appointment (once known as Letters Testamentary).  You should obtain at least 6 certified copies of these in addition to the 2 free certified copies given to you by the Court, because you will need to provide them to banks, taxing authorities, and more during your service as Executor.  You will then be able to go to IRS.gov and obtain a tax identification number called an EIN that you will use to open up the Probate Bank Account in which to manage all the cash assets of the Probate Estate.  You cannot open such an account without the EIN.  This account will be used to pay debts and other estate-related expenses. Any remaining money will eventually be transferred to the beneficiaries from this account.

5. Determine whether you need to file additional forms based on the size of your loved one’s estate.

During Step 1, you may learn that the Estate you are handling qualifies for something called Expedited Probate (e.g., you are the sole beneficiary-surviving spouse and Executor, and assets passing to you thru the Will are $25,000 or less in value) or  Small Estate Treatment (e.g., asset involve only bank accounts valued at less than $50,000). If the decedent’s estate does qualify for such treatment, you will be done with Probate. You may simply need to fill out a special affidavit form to complete the court process.

If your loved one died with a larger estate, there will be several more steps and forms to file. At this point, we highly recommend speaking with an experienced estate planning attorney to help you complete the probate court process.

Your attorney can guide you through the remaining steps you’ll need to take as an estate executor and potentially help you reduce probate costs. He or she can also help you fill out the proper forms for your situation and keep the process moving to ensure your loved one’s estate distributions are handled efficiently.

Our law office can help with your probate court matter.

The Law Office of Patricia E. Tichenor, P.L.L.C. been serving the Estate Planning and Probate needs of Northern Virginia families for more than 15 years. Contact us today for guidance on honoring your loved one’s wishes as the executor of their estate.

How to Update Your Estate Plan After a Divorce

estate planning after divorce

Updating Your Estate Plans After a Divorce
NOVA Estate Lawyers – Leesburg, VA

The divorce process is often a very long and painful one. Although you may have already moved on emotionally, some legal aspects of your life can’t move forward until your divorce is finalized by the court.

When you do receive that long-awaited divorce decree, one of your first priorities should be updating your estate plans. If you didn’t enter into a settlement agreement or obtain a “divorce from bed and board” during your separation period, your spouse may still have been entitled to inherit as much as 50 percent of your estate if you die during that time. Once you’re no longer legally married, your ex cannot benefit from your estate unless you want them to.

One exception is retirement accounts and life insurance if governed by federal law. You must update your beneficiary designations to remove your ex’s name from them if you want to be certain they do not inherit from you (see more on this below).

Which estate planning documents should I update post-divorce?

Following your divorce, you’ll want to review all your essential estate planning documents to see where your spouse is named. Here are a few common items to address:

Your will. As mentioned above, an ex-spouse won’t inherit anything left to them in your pre-divorce will, nor will they be allowed to serve as your executor if you named them as such. But if you don’t appoint a new executor and beneficiaries for your estate, a probate court will decide that for you. To reduce time, frustration, and costs for your family, make sure your will gets a thorough revision after your divorce. It’s important to note that any bequests to an ex-spouse’s family members will still be valid, so considering changing those as well.

Trust arrangements. Unlike your will, spousal trust arrangements are not automatically voided upon divorce. If you named your spouse as a trustee or beneficiary in your revocable living trust, consult with an estate planning attorney to make the appropriate changes. Unfortunately, if your trust was irrevocable, you cannot change it to exclude your ex-spouse unless that trust contains administrative provisions at the time it was originally drafted that permit you to void the document if you and your ex ever divorce.  In addition,  if you never funded that irrevocable trust, then you could control what happens with it by simply choosing to create a new trust and never titling any assets into the old irrevocable trust created during your marriage.

Power of attorney agreements. In Virginia, a durable general power of attorney (for financial decisions) where a spouse is the agent is deemed invalid upon filing for divorce or separation. However, a durable medical power of attorney – which lets your agent make medical decisions for you if you’re incapacitated – still stands, even after a divorce. If your spouse is currently named as your POA agent, change these designations as soon as possible.  If you’re entering into a settlement agreement, make sure it contains provisions that revoke your spouse’s role under all powers of attorney executed by you during the marriage.

Legal guardianship designations. If you and your ex have minor children, you likely named a legal guardian together in your wills in the unlikely event you both died. While courts typically grant custody to a child’s other parent when one dies (unless they are deemed “unfit”), be sure that any other guardians named in your will are people you still feel comfortable with, such as an in-law.

Direct beneficiary accounts. Insurance policies, retirement plans, and other “payable on death” accounts have their own separate beneficiary paperwork. By law, certain policies will not pay out to an ex-spouse, but it’s still important to appoint new beneficiaries after your divorce to ensure your money goes where you want it to.

What if I want to keep my ex-spouse in my estate plan?

The Commonwealth of Virginia automatically negates any inheritance to an ex-spouse in wills written prior to a finalized divorce. However, there may be circumstances in which you still want your include your ex in your estate plan, particularly if you have minor children.

If you want to leave money or property to your ex-spouse specifically for the care for your children, the best way to do this is to create a revocable living trust. This allows you to title your property in the name of your trust and then appoint your ex as the trustee, who manages the assets on behalf of your children until they reach adulthood. If you don’t already have a trust, an attorney can help you create one.

If you have an amicable relationship with your now-ex and still want to leave property directly to them, all you have to do is write this into a valid post-divorce will.

Ask an estate planning attorney.

Even if you know exactly how you want to change your will, trust, power of attorney agreements, etc. post-divorce, you should still consult with an estate planning attorney to make sure your documents have the proper legal language and offer the maximum benefits for your loved ones.

Located in Northern Virginia, The Law Office of Patricia E. Tichenor, P.L.L.C. is experienced in both estate law and family law, so we are uniquely positioned to help with your estate planning needs after your divorce is final. Contact us today to get started.

Gifting as an Estate Planning Tool: What You Need to Know

lifetime gifting for estate planning

Gifting as an Estate Planning Tool
NOVA Estate Lawyers – Leesburg, VA

For many people, passing on money and property to their loved ones happens after they die. However, if you have a sizable estate, you may not want to wait until then to give your heirs their full inheritance.

Under current federal law, individual estates valued above $10 million or $20 million per couple (indexed for inflation each year through tax year 2025 – so for 2018, the amounts are $11.2 million and $22.4 million, respectively) are subject to a 40 percent federal estate tax at the top rate. Strategic lifetime or inter vivos gifting can reduce the size of your taxable estate before your death, and help your beneficiaries avoid this hefty financial burden.

Qualified gifting is the complete and irrevocable transfer of assets from one person to another, where the giver does not receive anything in return. Certain IRS exemptions allow you to make these gifts completely tax-free, provided their values fall within the federally allowed limits. Going above these allowable amounts means that you, as the giver, are obligated to report the gift to the IRS and pay a federal gift tax.

If you plan to use gifting as an estate planning tool, you’ll want to plan out your giving and time it properly, so you and your loved ones can avoid as much estate-related taxation as possible. Here is a basic overview of annual and lifetime gifting exemptions, and how you can make the most of them.

Annual Gift Tax Exclusion

For tax year 2018, the annual gift tax exclusion allows you to give any single individual up to $15,000 per calendar year, tax-free. That means if you have three children and give each of them $15,000 this year (or $30,000, if you are married and you and your spouse “split” the gift), you do not need to pay gift tax. However, if you give one child $16,000 in a single year, $1,000 of that is considered taxable, and counts against your allowable lifetime gift amount (see below).

By the same token, your recipient does not have to report annual gifts under $15,000 as income, but they must report any income or interest earned directly from that gift.

Lifetime Gift Tax Exemption

The lifetime gift tax exemption is connected to the estate tax exemption: The $10 million limit is the combined amount that you can give away prior to death and leave to others after death, without being subject to federal taxes. This means that if you give away $5 million in non-exempt gifts while you’re alive, only $5 million of your remaining estate is tax-exempt, and your estate must pay taxes on anything beyond that amount.

If you are married at the time of your death, your surviving spouse is entitled to their own individual exemption plus any of your unused exemption, if you properly invoke portability in your estate plans.

You must also consider that the estate tax exemption is currently set to return to its previous $5 million individual limit in 2026. If you are young and unlikely to pass away before then, you’ll want to adjust your gifting plans accordingly.

Exceptions to the rules

There are a few gifting scenarios that do not count toward the above limits:

  • Marital gifts. If both spouses as U.S. citizens, they can make unlimited lifetime gifts to one another without paying taxes on those gifts.
  • Medical and educational gifts. Payments made directly toward a dependent-beneficiary’s medical services or education (e.g. tuition expenses) is not included in your lifetime gifting amount.
  • Charitable gifts. You do not have to pay gift tax on gifts given to qualifying organizations like charities, religious or educational institutions, government agencies, and 501(c)(3) tax-exempt organizations.

You can learn more about gifting, including specific information about the state laws in Virginia, in our blog post.

Talk to an estate planning attorney about gifting.

If you’re considering making gifts to reduce your taxable estate, it’s important to speak with an experienced attorney who can educate you on federal gift tax laws and other implications of lifetime giving. You can also work with your estate planning lawyer to create a strategic gifting plan that reduces your taxable estate while leaving you enough to support yourself.

The Law Office of Patricia E. Tichenor, P.L.L.C. has been assisting Northern Virginia individuals with their estate plans since 2001, and we’d love to help you create the best strategy for your family’s future. Contact us today to talk about your unique estate planning needs.

Estate Planning Tips for New Parents

estate planning for new parents

Estate Planning for New Parents
NOVA Estate Lawyers – Leesburg, VA

Before you had your child, you only had to think about inheritance for your partner (and maybe your siblings or cousins). As self-sufficient adults, your heirs would be financially OK if you died tomorrow and left them whatever was in your estate. More importantly, they’d understand what to do with those assets and how to manage them.

Small children, on the other hand, cannot financially provide for themselves, and likely wouldn’t have the maturity or knowledge to handle the assets you left them. That’s why, when you have a child, your estate plans need to consider not only the money and property you’re leaving behind, but how your estate will be managed on your child’s behalf, and who will care for the child in your absence.

What’s the best way to provide for my child in my estate plans?

As a new parent, you’ll want to update your estate plans as soon as possible after your child’s birth or adoption. Here are a few key elements you should incorporate:

Legal guardianship designation

One of the most crucial considerations for parents of minor children is who would care for them if both of you were to die. It’s an unthinkable situation, but it could happen, so you’ll need to appoint a trusted, responsible legal guardian in your will. You may also wish to designate this person as a Standby Guardian, who can care for your child if you become permanently or temporarily incapacitated during your lifetime. Always ask a person before you include them as a guardian in your estate plans to ensure they accept and understand their responsibilities.

Revocable living trust and trustee

When you pass property through a will, it goes through a lengthy, expensive probate process. It also becomes tricky when you try to leave assets to a minor child, as they may not be capable of managing money and property yet. Instead, you can set up a trust, in which an appointed trustee manages your assets on behalf of a beneficiary (i.e., your child) until they are old enough to inherit it. A trust has the added benefit of keeping the inheritance process out of court, which means it is faster and more direct.

You can learn more about how a trust works to provide for your minor child or a beneficiary with special needs in our blog post.

Beneficiary designations

If you have payable-on-death assets that require a special beneficiary designation form, such as a life insurance policy or a retirement account, update these to include your child as a new primary or secondary beneficiary.

Aside from the above, a complete estate plan also includes your will, a durable general power of attorney, and a durable medical power of attorney.

You may be tempted to put off estate plan updates because you’re too busy worrying about your child’s immediate needs, but it’s imperative to make time for this. The only thing more important than caring for your baby right now, is making sure they’ll be taken care of if something happens to you.

Speak with an estate planning attorney today.

Every family is different and has their own unique estate planning needs. The Law Office of Patricia E. Tichenor, P.L.L.C. has been assisting Northern Virginia families with wills, trusts, legal guardianships, and other estate-related documents for more than 15 years.

Contact us today to learn how we can help you create the best plan for your family, and ensure that your child’s future is secure.

Estate Planning Documents: What Do I Need?

estate planning documents

Essential Estate Planning Documents
NOVA Estate Lawyers – Leesburg, VA

You probably know you need to write a will to distribute your property and financial assets following your death. This is a good start, but for a comprehensive, complete estate plan, you’ll need a few more essential documents.

Other estate planning tools, such as a living trust and a power of attorney (POA) agreement, work in conjunction with your last will and testament to make sure your intentions are honored on all fronts. Without these additional documents, a probate court may have the final say over what happens to parts of your estate, a process that is both costly and potentially heartbreaking for your loved ones.

Before concluding that your estate plan is complete, be sure that you’ve determined whether you actually need all or some of the following estate planning documents to achieve your specific goals for your plan:

1. Last will and testament

When drafted according to your home state’s laws, your will is a binding legal document that tells a probate court how to follow your final wishes. Every will needs an executor – whether it’s a family member, friend, or trusted professional like an attorney – to oversee the management of your assets after your death. This person will pay your final debts and expenses, file estate taxes, and make distributions to your named beneficiaries.  They will also distribute items from your tangible property list to named beneficiaries if you leave such a list.

2. Revocable living trust

While you still always need a will, many estate planning attorneys recommend distributing some property via a revocable living trust. A trustee of your choosing will manage the assets titled into the name of your trust (before and after your death) – without court interference – on behalf of the beneficiary you designate.  If you decide to add a living trust to your estate plan, then you can have a very simple will that functions as what’s called a “pour-over will,” to allow your executor to merely serve to transfer to the control of your trustee and your trust any assets that you did not title in the trust prior to your death, did not name the trust as the beneficiary of prior to your death, or did not name a living person to receive at your death.

3. Durable general power of attorney and durable medical power of attorney

The person(s) you name in your power of attorney agreements are the ones who have the legal right to make financial and healthcare decisions for you if you become incapacitated during your lifetime. Your POA agents should be individuals whom you trust to act in your best interest if you are mentally or physically unable to communicate your intentions.

4. Beneficiary designations:  Guidance on Non-Probate Planning

Most people know that for assets such as retirement plans and insurance policies, you need to fill out the beneficiary designation forms provided by the company that holds your account. Forms for such assets supersede your will instructions, so always keep them up-to-date, especially if you’ve had any recent major life changes.  However, you can do this with many other types of assets and are encouraged to seek guidance on doing so as part of a comprehensive estate plan.

5. Legal guardianship designation

If you have minor children, you’ll need to choose a trusted legal guardian to care for them if you become disabled or die before they are of age. It’s wise to have this discussion with your potential guardian before naming them in your estate plans. If you don’t, the process can be costly and stressful for the children and family members to deal with, including home visits, possible foster family care, and court appearance to have someone appointed guardian.

Optional: Letter of intent

Although it’s not considered a legally valid estate planning document, you may want to create a letter of intent to guide your estate executor with specific instructions to follow upon your death, including potential funeral arrangements.  Such letters could be a good way to communicate your final burial wishes or the reasons for making certain gifts to certain beneficiaries.   Lastly, such letters might also help a probate court interpret your will and intentions if any part of it is called into question.

Need estate planning forms? Speak with your attorney.

Not sure where to begin with your estate plan documentation? The The Law Office of Patricia E. Tichenor, P.L.L.C. can help. We have been assisting Northern Virginia families with their estate planning needs since 2001.

Contact us today to learn how we can help you create the best plan for your family’s future, and ensure that all the necessary forms are complete and legally sound.

The Law Office of Patricia E. Tichenor, P.L.L.C.
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(703) 669-6700

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