7

What You Do and Don’t Need from Your Estate Planning Attorney

What You Really Do and Don’t Need from Your Estate Planning Attorney

What You Do and Don’t Need from Your Estate Planning Attorney |
NOVAEstateLawyers.com

Whether you’re drafting your first Will or updating an existing plan, it’s important to work with a trusted estate planning attorney throughout your lifetime. Not only does this ensure your final wishes are documented and all your beneficiaries and heirs are covered, but it also provides you peace of mind knowing your plans are legally sound and properly drafted.

To help you get the most out of your arrangement, here are some things you do and don’t need to discuss with your estate planning attorney.

You DO need a Will.

A Will is a legal document that outlines your wishes regarding your estate. This includes decisions like who gets your property, who will care for minor children, how your financial assets will be distributed, and more. It’s important to have a Will in place at any age to ensure your wishes are granted should something happen to you, and that your beneficiaries do not face any challenges inheriting from your estate.

You DO need powers of attorney.

Thinking about death or incapacitation is scary, but not having a plan in place for who will manage your assets, pay your bills, or make medical decisions for you is even scarier. That’s why every estate plan should include signed financial and medical power of attorney documents.

Without a designated power of attorney (sometimes referred to as your “attorney-in-fact” or your “agent”) to manage your financial affairs and medical decisions (including end-of-life decisions), the courts may be called upon to decide, and they could select a person that you may have never wanted in those roles. It is also far more expensive to go this route than to have powers of attorney drafted and signed in advance—about 10 times more.

You DO need standby guardians for your minor children.

When individuals have children under the age of 18, they need a Designation of Standby Guardian that appoints a trusted friend or family member to care for their child(ren) should both parents pass away or suffer a severe illness or injury that renders them unable to care for the child(ren) themselves.  In some states, including Virginia, there is also a special Power of Attorney form now available, but that document only remains in effect for six months at a time, and must be re-executed at the end of the 6 months.

You DON’T always need a trust.

Many people exploring estate planning for the first time are confused about whether they really need a trust. Trusts can be very useful, but they are also very expensive and require additional steps after you sign to fund them or re-title your assets in the name of the Trust.

If your total estate is valued at less than the current federal estate tax exemption of $11.7 million, you don’t necessarily need a trust to shield a portion of your taxable assets (although this exemption amount will eventually be reduced). Moreover, if the beneficiaries of your estate are residents of a state that does not have an inheritance tax, you may then only need a well-

written Last Will and Testament rather than a trust as part of a comprehensive estate plan.

You can also use something called a Revocable Transfer on Death Deed, sometimes called “the poor-man’s trust” to leave real estate you own directly to a loved one without it ever having to pass through a Will or probate.

You DON’T need to add your funeral wishes to your Will.

Many people assume they must include detailed funeral instructions in their estate plans, but this is a common misconception. The probate process typically happens after your funeral and therefore will likely not even be seen by your loved ones in time to make your desired arrangements. However, you should still discuss your wishes with your family or loved ones during your lifetime. Common points to cover include whether you want a funeral service; if so, where it will be held; who should be notified about your death; whether you want to be cremated or buried; etc.

Contact a trusted estate planning attorney for guidance.

If you do not have a valid Will or your current estate plans are more than five years old, we strongly recommend that you meet with an experienced estate planning attorney to set them in place immediately. You never know when illness or an accident will strike, nor do you know the impact it will have on your family or children if you have no plan or an outdated plan in place.

Looking for legal advice or documents needed to ensure your estate’s security? Schedule a free consultation with the Law Office of Patricia E. Tichenor for more information

Why (and How) to Disinherit Someone from Your Will

disinherit dictionary page

How to Disinherit Someone from Your Will | NOVAEstateLawyers.com

No matter your current age or status in life, it’s important to keep a valid and updated Will to secure your loved ones’ financial future. Sometimes, this means making adjustments when certain people you once intended to leave part of your estate to are no longer an active part of your life.

Disinheritance is the process of removing beneficiaries from your Will. If someone stands to inherit a portion of your financial assets after your death, disinheritance leaves that person with nothing.

Keep in mind that disinheritance differs from simply revising your Will, as it will completely remove a beneficiary from receiving anything. This can happen for several reasons, but sometimes an individual may elect to leave no reason for the disinheritance for a remaining beneficiary.

Reasons to disinherit someone from your Will

 

Disinheritance is a serious matter, so it’s important to understand what scenarios may render this your best option:

  • Divorce: A divorcing couple should always revise their estate plans once their divorce is finalized. Although spousal inheritance rights are terminated upon divorce (i.e., any Will drafted prior to the Final Order of Divorce is rendered invalid if an ex-spouse is named as a beneficiary), you may need to go through your other estate plans, such as power of attorney documents, trusts, or pay-on-death accounts, to ensure your ex is removed from those documents. Additionally, you may need to revise your Will to disinherit any former in-laws you may have added to your estate plans during your marriage, as a divorce decree does not invalidate their inheritance. By taking these steps, you’re setting your children, family members, and future spouse (should you choose to remarry) up for financial success.
  • Estrangement: People come in and out of your life. When this happens with family, it’s important to enact financial protections so the family members in your life are set up properly. Should a child or family member become estranged from you, it’s important they’re disinherited.
  • Medical/health status: If you have a child or family member with special needs, you may wish to disinherit them from your Will so they are not disqualified from receiving certain government benefits after your death. Or you may need to create a Special Needs Trust for them instead and name their Trust as the beneficiary in your Will so that what you do leave them will not be treated as a countable asset and will therefore not negatively impact their ability to receive such government benefits after your death.
  • Decreased financial need: People’s financial situations change over time. As your children and family members live their lives, they could require different amounts of your wealth to keep them afloat. This is an entirely subjective decision and one that will vary widely based on your specific situation.

How to disinherit a family member or loved one

The basis for disinheriting someone comes down to clarity. You want to be explicit about your intentions – and ensure your documents are valid and properly drafted – so there can be no dispute over how your estate is handled.

1. Give gifts during your lifetime.

One simple way to ensure the right people receive the right parts of your estate is to gift them to the proper individuals while you are still alive. While this may not always be an ideal scenario, it is a sure-fire way to ensure your wealth is disseminated properly.

2. Designate beneficiaries with no-contest clauses.

While giving major financial gifts to beneficiaries is a good option, it’s not always ideal for people. When your will is drafted, make sure you designate what each beneficiary gets and include a no-contest clause. This clause will reduce conflict among your family and beneficiaries.

3. Include a supplementary letter or video recording.

If you feel strongly about your inheritance, it’s good to include a supplementary letter or video recording explaining why and to whom you are designating who should not receive certain assets. Especially in the case of disinheritance, a supplementary letter or video guarantees that a certain level of clarity is achieved. This means family conflict can be avoided, and a beneficiary’s lawyer cannot try to leverage silence as a way to maximize their position to contest your Will.

4. Have your spouse waive your claim.

This option is especially present in cases of divorce. Upon your passing, your spouse can also waive the right to their share of your inheritance through a postnuptial agreement. This is often included as essential documents in divorce proceedings.

Drafting an air-tight Will and ensuring the right beneficiaries receive the right amounts of your estate can be tricky. The Law Office of Patricia E. Tichenor can help you ensure your estate plans are properly drafted and protect your family’s future. Contact us to schedule your free consultation.

How to Create an Estate Plan for a Disabled Beneficiary

estate planning for disabled beneficiary | parent pushing child in wheelchair

Estate Planning for a Disabled Beneficiary | NOVAEstateLawyers.com

Many people choose to create an estate plan to provide for their loved ones after their death. In some cases, this may include providing care for a person with a physical or mental disability.

If you intend to leave any portion of your estate to a disabled beneficiary, it’s crucial to develop your plan carefully to meet that beneficiary’s individual needs. A well-developed plan will ensure that your loved one receives the maximum amount you wish to leave them from your estate, without disqualifying them from certain government benefits.

Here are some considerations to keep in mind and include when creating an estate plan for a loved one with a physical or mental disability.

How to create an estate plan for a disabled beneficiary

There are several estate planning strategies that will ensure your loved ones are cared for after your death, including provisions in your Will and a Special Needs Trust (SNT).

When your estate plan includes a disabled beneficiary, there are additional steps you’ll need to take to ensure their individual needs are met:

  • Understand the type of disability. The needs of someone with a physical disability will differ from those with a mental disability, and specific physical or mental disabilities will require specific supports. The interaction of multiple diagnoses can also play a role into the type and degree of disability.
  • Understand the beneficiary’s abilities and limits. Even within a given diagnosis of a physical or mental disability, each individual has their own unique abilities and limitations. Keep in mind what your loved one can do, in which areas they need support, and the level of support they need.
  • Consider their future needs and whether their condition will require extra help. In addition to considering your beneficiary’s current needs, you will also need to keep in mind their future needs. If they will need special housing or care down the road, include any specifications for these in your estate plan.
  • Determine the government benefits and sources they rely on. Government programs like Medicaid and Supplemental Security Income (SSI) programs have specific qualification requirements, including limits on the assets or income a beneficiary may have in order to qualify for such benefits. If your loved one relies on these programs, check the eligibility requirements to ensure that your estate plan does not disqualify them.

Disinheriting a beneficiary with a disability

One estate planning option is to disinherit the disabled individual. Though this may seem counterintuitive, the process of disinheritance allows your loved one to continue collecting government benefits while also being supported by any siblings or close relatives.

In essence, a disinheritance estate plan would leave the entire estate to the surviving relatives of the individual with a disability, while also legally obligating them to use a portion of the inheritance to provide care for their disabled sibling.

While disinheritance is a less complicated option than including a disabled beneficiary in your estate plan, it also has potential downsides. One major disadvantage is that your loved one may not receive the full portion of the estate that you intended for their care. Factors such as sibling bankruptcy, divorce, or failure to fulfill their obligation of support can all reduce the amount of the estate that the disabled sibling actually receives. Additionally, the process of disinheritance can also harm the relationship between the disabled individual and the person making the estate plans.

Get help with your estate plans

Estate planning can be a complicated process, especially when planning for the care of someone with a physical or mental disability.

If you are in the process of creating a Will that includes a disabled beneficiary, contact the Law Office of Patricia E. Tichenor for help. We have 20 years of experience handling estate planning for Virginia residents and can guide you and your family through the process.

Contact us today to schedule a free 30-minute consultation about your estate planning needs.

6 Common Reasons to Update Your Will

couple looking at paperwork to update their will

Reasons to Update Your Will | NOVAEstateLawyer.com

Writing your Will isn’t normally a one-and-done process. Your life is ever-changing, and from time to time, you’ll want to revisit and revise your will to match your current situation.  Changes in your age, your children’s age, the birth of a grandchild, declines in a family member’s health, and, equally important, changes in state and federal law, especially tax laws often warrant a review of your current Will and overall estate planning goals.

Updating your Will and overall estate plan is generally recommended after any change of life event or major circumstance changes, provided you’re not being coerced by another party to do so. Here are six common reasons to consider updating your existing Will.

1. Your family situation has changed.

Since you drafted your original Will, your family dynamics may have changed. Changes to your own health, your spouse’s health, or that of one of your children can prompt the need to also determine if a Will alone is sufficient to protect you and them in the future – especially if you may cease to have the capacity to update your Will at a later time.  An addition to the family, including children and grandchildren, can prompt you to reconsider your beneficiaries, especially if they are under the age of eighteen (18) or twenty-one (21). Additionally, it is always important to consider updates to your designated testamentary guardians, particularly as your children become more established in their education and community connections such that placing them with an out-of-state guardian may not be in their best interests.

Family-related Will change can also be required in the event of a divorce or the passing of a family member who was named as a beneficiary. As soon as possible after these events occur, you’ll want to update your Will to ensure your assets are distributed according to your current wishes.

2. Your relationships have changed.

As life goes on, relationships, including those with romantic partners, family, and friends can change.  You may not have the same closeness you once did with someone or are unsure if a beneficiary in your Will is able to take on your assets once you pass. Those you may have chosen as executors of your Will may not be able to hold this role anymore, making it crucial to reflect these changes in your current Will.

3. You’ve moved or acquired an out-of-state asset.

Laws governing estate planning and the validity of Wills can vary based on where you live.  For instance, if you recently moved to Virginia from another state or country, you may wish to consult with a local attorney to ensure everything in your Will is still valid as written — particularly if you purchased a home in Virginia.  It may be best to review the differences in the probate laws of Virginia versus the state or country from which you relocated.  Similarly, if you recently purchased an out-of-state property that you plan to leave to a loved one, be sure you understand whether using a Will is the best tool for doing so as well as the gift tax consequences for such a devise.

4. Tax or estate laws have changed

Federal and state tax laws are constantly in flux, and the new Biden Administration is expected to propose some changes that could impact your current estate plans.  Understanding these laws and making changes to your Will and your overall estate plan could be critical to ensuring you transfer assets to your loved ones using the most effective estate planning tools available.

5. Your assets have changed

Another reason to update your Will is either a sharp increase or decrease in your current assets. If your asset value is no longer as high as it was, you may want to reevaluate the distribution of your assets in your will.

Additionally, if your assets have increased, you may want to re-allocate your distribution plans for your named beneficiaries or add more beneficiaries.  It’s also possible and often advised to create a trust, which could keep your heirs from having to go through probate in order to inherit certain assets.

6. You’ve had a change of heart

Another reason is, quite simply, that you may have experienced a change of heart in your current relationships or assets, which warrants an update to your will and overall estate plan.  Maybe you drafted your will when you were young and have a different idea of how you’d like to distribute your assets. Maybe your children are grown adults, with different financial or life circumstances.  Whatever the reason, it’s common to make adjustments to your will based upon careful thought and consideration of life’s changes.

Updating your Will? Get help from an experienced estate planning attorney.

Estate planning involves many types of choices and knowledge of the available tools to best implement those choices.  Trying to update your Will on your own or determine which tools might serve you best can be difficult and stressful.  Therefore, it’s important to work with a seasoned estate planning attorney to help you become fully informed of the tools available to you and avoid any potential issues along the way.

The Law Office of Patricia E. Tichenor, P.L.L.C. has 20 years of experience handling estate planning matters for Virginia residents. If you need help drafting or updating your Will, or your other estate planning documents such as powers of attorney or a trust, we can guide you and your family through the process. Contact us to schedule a free consultation about your estate planning needs.

7 Things You Should Never Include in a Will

man sitting at laptop contemplating what not to include in a will

What Not to Include in Your Will | NOVAEstateLawyers.com

When you’re creating a Will, you likely know you need to include specific instructions for how you want your assets distributed and who you wish to serve as your executor. However, it’s just as important to understand what not to include in your Will.

Estate planning can be complicated, and an improperly drafted Will could result in hassles for your loved ones and your wishes not being carried out as intended. As you’re drafting yours, here are seven things to avoid adding if you want a legally valid document.

What to avoid putting in your Will

1. Certain types of assets

Different types of assets have different rules that govern how they’re distributed after you die. These rules are independent of your Will. For example, joint tenancy property will legally go to the surviving tenant, while certain assets like life insurance, retirement plans, and stocks and bonds will go to your designated “pay-on-death” beneficiary.

2. Funeral instructions

Many people mistakenly believe their desired funeral plans should be stated in their Will. However, the execution and settling of the estate typically doesn’t happen until after the funeral. If you include your funeral arrangements, they likely won’t even be seen until after your services.

To ensure your funeral wishes are executed, talk with your loved ones about the type of service and burial you’d prefer and let them know you’ve made certain indications of those wishes in your Will but may also prepare additional details in a separate document.  If you do create a separate document outlining your wishes, make sure to give it to the intended executor of your Will during your lifetime to make sure your funeral happens as you envisioned.

3. Conditions for gifts

Often people will put certain conditions on gifts that are stated in their Will. However, not all of these conditions have the ability to be executed legally. For example, you may wish to leave a grandchild a sum of money for when they graduate college or leave someone in your family a certain property if they use it for a professional endeavor. These conditions can be loosely enforced by the executor of your Will, but they can be challenged if someone disagrees.

It’s important to note that any condition that includes marriage, divorce, or the change of religion (e.g., “This person can only inherit my house if they remain single and unmarried.”) cannot be included in a Will, as it cannot be enforced in a court.

4. Care instructions for a person with special needs

If you would like to arrange care for a dependent with special needs or a disability, your Will is not the place to do it. Instead, it’s best to set up a separate document called a special needs trust that will specifically address the management of care for someone with special needs.

5. Pet inheritance

As animals do not have the legal capacity to own property, you cannot leave any gifts directly to a beloved pet. What you can do is use your Will to leave your pet to someone who you know will provide for your pet’s care. You may also set up an irrevocable Pet Trust, either as an additional provision of your Will or as a separate trust document, which will allow you to pass on any property, money, or assets to your designated caretaker to help them provide for your pet according to your wishes.

6. Joint assets and Retirement Accounts

Much like joint property, any funds or money that is in a joint account will automatically go to the other surviving account holder. It is unable to be inherited by anyone else until the other account holder passes away.  In addition, if you want to allow your beneficiaries to defer additional taxes and penalties associated with the probate of your retirement assets, it may be important for you to discuss the pros and cons of naming a beneficiary (such as a child) as a pay-on-death beneficiary after your spouse or omitting any secondary beneficiary so that the retirement will pass through your Will and be managed by a trustee named therein for a child’s benefit.

7. Leased or rented assets

You cannot gift anything that is not entirely legally yours in your will. This includes a leased car or a rented home or apartment. These assets will be returned to their legal owner once you have passed.

Get help properly drafting your Will

If you are currently in the process of creating a Will, contact the Law Office of Patricia E Tichenor. We have over 20 years of experience handling estate planning for Virginia residents and can guide you and your family through the process. Contact us today to schedule a free consultation about your estate planning needs.

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

Contact

Social Media Auto Publish Powered By : XYZScripts.com