By John Lee
While Virginia allows a person to draft his own Last Will and Testament it is certainly not advisable. There are many unforeseen pitfalls to even basic estate planning. An attorney can help you come up with an Estate Plan that sets your mind at rest and makes it easier for your heirs to manage your estate.
Virginia will recognize a handwritten Will that is signed and dated by the testator, often called a holographic will, so long as it has some basic testamentary language, but to avoid expensive probate procedures it helps to have at least two witnesses, a notary and a self-proving affidavit.
Certain assets pass outside of a Will, meaning you don’t need a Will to pass these assets to your heirs upon death. Most financial accounts, like bank accounts, will allow you to set up a Pay-On-Death (POD) clause that directs the bank to give the money to the person designated on the POD. By setting up your financial accounts with these POD clauses you avoid the need for these assets to pass through probate.
Jointly titled property, like real estate, if held Tenants by the Entirety or With Rights of Survivorship pass to the intended beneficiary without need for a Will. In Virginia, there is now a Transfer-on-Death (TOD) deed that automatically vests the real property with the beneficiary upon the testator’s death without passing through a Will or probate. The TOD deed is an excellent tool to transfer real estate for small estates because it does not transfer the property until death, does not subject the property to the claims of the beneficiaries’ creditors while testator lives, avoids certain probate taxes and gift taxes, and can be easily revoked while the testator is still alive. The TOD controls over a Revocable Trust or Will. You would need to speak to an attorney to determine if a TOD deed is right for your situation.
Life insurance proceeds also pass outside of a Will to the named beneficiary in the life insurance policy. Generally speaking, life insurance policies will allow you to name several beneficiaries that can be changed during the insured’s lifetime. Most life insurance policies will allow you to name more than one beneficiary; this allows you to divide up the money between your chosen beneficiaries during your lifetime.
Other things to consider when drafting a Last Will and Testament are the age of the testator, spouses and former spouses, the ages of the beneficiaries, asset levels, debt levels, types of assets, and the trustworthiness and capabilities of children and heirs. A lawyer can help you set up an estate plan taking these variables into consideration.
Oftentimes couple will want to have a Power-of-Attorney in case one of them is unavailable to take care of (typically) financial business. If one spouse travels a lot, or is gone for long periods of time, a Power-of-Attorney can allow for the spouse at home to sign documents and conduct business for the away spouse. Hampton Roads sees a lot of military spouses getting Power-of-Attorneys prior to long deployments. I caution my client’s to be very careful to whom they give a POA because they could easily rack up credit debt or clean out a bank account.
An Advanced Medical Directive (AMD) allows for another person, typically a family member, to review your medical history, speak to your doctor and make medical decisions on your behalf when you are medically unable to. It is good to get an AMD before you need it because it must be signed while the grantor is still cognizant. It may be too late to execute an AMD after an accident that renders you or your spouse unconscious.
We offer a free initial consultation to discuss these issues with our client(s) to help them determine the best way for them to plan for the future. We offer a basic estate planning package which includes Wills for a husband and wife, two Power-of-Attorneys and two Advanced Medical Directives for a very competitive flat fee price. If you need a Revocable Trust or Transfer on Death deed, we can help you with that as well.