If you do an internet search for “Last Will and Testament,” you will find countless advertisements from huge corporations trying to sell you a “Do-it-Yourself” Last Will and Testament. You may think that you can save a few hundred dollars by printing off that form and skipping a trip to the lawyer’s office. But is an online “fill-in-the-blank” form just as good as having an attorney help you to draft your Last Will and Testament?
You spent a lifetime accumulating assets, maybe a house, investments, bank accounts, collections, or collectibles. Do you really want to trust it all to a form you got online? Here are some good reasons to skip the “fill-in-the-blank” online form and hire an experienced lawyer to help with your estate plan:
- Experience. Even a simple estate plan often involves more than just a Last Will and Testament. Even if you do not have complex tax issues to worry about, you need to coordinate assets that will pass outside of a Last Will and Testament, like retirement plans, some real estate, life insurance policies, and financial accounts that have Pay-on-Death (POD) clauses. A lawyer can help you understand how all these different assets work together and help you create a cohesive estate plan. Failure to properly understand how POD property passes outside of a Will could result in the wrong person(s) receiving your assets. The lawyer can help you understand how your decisions now will affect your executor and heirs when the time comes. A local lawyer will usually be able to give you more comprehensive advice regarding your estate plan than a mega corporation that sells fill-in-the-blank forms in all 50 states.
- Avoid Mistakes. It is very easy to make a mistake in drafting a Last Will. Virginia requires certain formalities with regards to witnesses and notary seals for a Will to be valid. If the witnesses and notary are not done properly, then the Court may not accept your Will when the time comes. While holographic Wills are technically permitted in Virginia, it is difficult to get the Court to accept them because, among other things, two witnesses are required. I have seen one online company that was giving bad information to their customers regarding witness signatures. Every Will form they sold was potentially invalid and may not be accepted by the court due to a flaw in their signing instructions. The mega corporation that sold you the blank form is not going to ensure that you properly followed the formalities in executing the Last Will.
- More Than Just a Last Will. As discussed before, even simple estate plans involve more than just a Last Will and Testament. Not only do you have to pay special attention to property that passes outside of a Will, but in many cases, you will want to also have a Medical Directive and Durable Power of Attorney. An attorney can advise you with the best ways to set up and manage these documents so that there are no unintended consequences. Even after you have your estate planning documents, a lawyer can discuss with you steps you may wish to take to further ensure that your wishes are carried out. In some cases, you may need a Trust to lessen your tax burden. A lawyer can help you determine if you need a more complex estate plan.
- Drafting Issues. A lawyer can help you avoid drafting errors or other costly mistakes. A properly drafted Will can set up a testamentary trust for a minor child that is too young to inherit property directly. A lawyer can help you choose executors, trustees, guardians, agents, and their alternates. Drafting is important because of the way Wills are read and executed. A simple (and unnoticeable to the untrained eye) drafting mistake could easily cause an asset to go to the wrong beneficiary based on the order in which it was mentioned in the Last Will. What happens with children from a previous relationship? What happens with jointly owned real estate? What happens when my executor dies before me? What happens when my child or children die before me? What happens if I forget to mention an asset in my Last Will? Can I disinherit a spouse or child in my Will? What is a Transfer-on-Death deed? Should I set up a Life Estate? Can my spouse change his/her Will and disinherit my child if I die first? Who will pay my debts and mortgage when I am gone? How can I leave money to an adult child that I feel is unable to manage an inheritance? What is a reverse mortgage and how will it affect my heirs? A lawyer can help you work through all these questions and concerns.
- Cost. Hiring a lawyer to draft your Last Will could save your heirs thousands of dollars and hundreds of hours of litigation trying to fix mistakes in your “fill-in-the-blank” online Will. Most lawyers care about their reputations and are concerned about being sued for malpractice, so they are motivated to do quality work and give you good advice. Unfortunately, these huge corporations that are selling you “fill-in-the-blank” forms take no responsibility for what happens after you buy the blank form. Most people would prefer to spend a few extra dollars to have a lawyer draft their Last Will than leave their heirs a terrible mess to be sorted out when they are gone.
In summary, a lawyer can help you understand and prepare a comprehensive estate plan that will take into consideration your entire estate, not just the portion that passes through the Last Will, including titling of real property, life insurance policies, retirement plans, and investment/bank accounts. Nearly every week a potential client presents me with some form he previously found online and filled out without the advice of counsel. Now, he is in a terrible situation that will cost him tens of thousands of dollars due to him not understanding the form he found and signed. Had he just consulted with me before signing the “fill-in-the-blank” form he could have avoided the catastrophic situation he is facing. In almost every instance, there was generic wording in the form that he did not understand, that an attorney would have deleted or reworded. But, not understanding the words, he just left them in the form. Now, years later, he is suffering huge financial losses by being held to the terms of the document or contract he found online.
An attorney can help you make decisions now that will make the administration of your estate easier for your executor and heirs. Finally, a lawyer can help your coordinate, manage, and draft other estate planning documents that may make your final years easier for both you and your children. Do not trust the government or some faceless corporation’s blank form to ensure that the possessions you worked a lifetime for make it to your intended beneficiaries. The best way to ensure that your estate plan will distribute your assets the way you intend is to hire a local lawyer.
No one likes to think about having a Last Will and Testament drawn up, but everyone will need one at some point in time. More often than not, if you are under the age of 50 and don't have a large amount of property and valuable assets, a simple will is best for you. Later in life as you acquire more, you may want to consider additional planning.
If you choose to not have a Last Will and Testament, then the State will determine who receives your belongings when you pass. If you have any assets, property, or children, then you should have a Last Will and Testament. The Last Will and Testament can let your heirs know what you wanted to have done with your property and who should take care of your children when you are gone.
A lawyer can help you properly draft a Last Will and Testament so that it will be accepted by the probate court, saving your loved ones time and money. A Last Will and Testament done by a lawyer should have witnesses, notary seals and a self proving affidavit. All of these things help your Last Will and Testament move through he probate process more quickly, but all that is required of a Last Will and Testament in Virginia is a writing with testamentary language that is dated and signed by the testator.
There are some assets that do not pass through a Last Will and Testament. If you own a house with another person and it is titled “with rights of survivorship” then it will automatically pass to the joint owner upon your death.
If you have a bank account with a 'pay on death' clause, then it will pass automatically upon death. If you have a life insurance policy that has a stated beneficiary, then that too will pass outside of a Last Will and Testament.
Virginia Last Will & Testament Attorneys
Most people are reluctant to talk about how the assets they’ve worked hard all their lives to acquire should be distributed after they die. People simply do not like to the discuss the possibility of death and dying. What they do not realize is that a consultation with a last will and testament lawyer at the Hampton, Virginia, Law Offices of John W. Lee, P.C., offers them the peace of mind of knowing they have provided for their loved ones in a way consistent with their own wishes. A lawyer can show them how a simple will takes away the uncertainty and worry about estate distribution.
What Is a Last Will & Testament?
Virginia laws recognize the right of adults to control what happens to the assets they own following their death. The document by which this is accomplished is a last will and testament, which is frequently referred to as a will. A testator is the name given to someone making a will.
Individuals dying without having a valid will risk having the decision about what should be done with their assets made according to the intestacy laws of Virginia. This might not follow the wishes of the individual.
For example, if a married person dies without having a will, the person’s spouse and children share in the distribution of the estate under commonwealth intestacy laws. The fact the deceased individual frequently expressed a desire to exclude an adult child from sharing in the estate because of gifts made during the lifetime of the parent does not prevent the child from sharing in the estate. This could have been prevented had the parent gone to a Newport News attorney to have a simple will prepared containing a provision accounting for the money the child already received.
Elements and Legal Requirements of a Last Will & Testament
A simple will usually contains the following provisions:
- Designation of a representative: The person designated in a will to be appointed as the estate representative is referred to as an executor or, in the case of a female, an executrix. Once appointed by the court, the executor or executrix has the power to gather and take control of the assets of the deceased in order to carry out the instructions left in the will.
- Creating a trust and naming a trustee: A testamentary trust is a trust created in a will. It is used when there are minor children receiving all or part of the distribution under a will. The assets going to the child are placed in a trust to be held and controlled by a trustee and used according to the instructions contained in the will.
- Designation of a guardian for minor children: Parents want to know their children will be properly cared for by someone they trust. Even though both parents might be alive when a will is prepared, an attorney would recommend adding a provision for a guardian in case of an accident in which both parents are killed.
- Distribution of assets: A simple will offers individuals the ability to have full control over how their assets are distributed after death. People wishing to leave money to charities can do so by having an attorney include a provision in their will.
Wills offer the flexibility to accomplish whatever a person wishes with regard to the distribution of wealth.
The formalities of a will are that it must be signed in the presence of two witnesses. The witnesses must then sign the document. There is no requirement that a will be signed in front of a notary, but the person making the will, known as a testator, must be at least 18 years of age and of sound mind.
A will made in another state is valid in Virginia Beach as long as it met the requirements for a valid will in the state in which it was made. If someone moves from one state to another, it is always a good idea to have the will reviewed by an attorney to make certain it meets the state’s requirements for a valid will. Periodically reviewing a will with an attorney is a good idea in order to make certain its provisions accurately reflect the most current wishes of the individual and take into consideration all assets owned by the person.
Do Not Confuse Living Wills With Simple Wills
A living will is not the same as a simple will. Simple wills offer people a method for controlling how their assets are distributed after death. Living wills are documents by which people state their preferences for end of life decisions if they are in a coma or are suffering from other types of medical conditions preventing them from stating their wishes.
Unlike a simple will, living wills do not allow people to distribute assets after death. They do, however, offer guidance to doctors and other health care providers about a patient’s wishes when the person is unable to make them known due to physical or mental impairment.
Living Trusts and Simple Wills
A trust setup and funded during the lifetime of its maker is a living trust. Living trusts play important roles in estate planning, but they do not eliminate the need for a last will and testament.
People with living trusts might not include all the assets they own in the trust. Assets not in the trust are taken care of by the provisions of a simple will.
Making Changes to a Last Will & Testament
Wills do not expire, but they can be changed or revoked. Physical destruction of the document is one method of revoking a will. Simple wills can also be changed or revoked through a document known as a codicil.
Written and signed with all the formalities of a last will and testament, a codicil is used to make changes or additions to an existing will. The original will continues in full force and effect, but it is altered by the terms of the codicil. Codicils are usually reserved for minor changes to a will. A Virginia Beach last will and testament lawyer might recommend preparing a new will when there are extensive changes to be made.
Why Should a Person Have a Lawyer Prepare a Last Will & Testament?
Failing to follow the formalities and legal requirements associated with drafting and executing a will can result in courts refusing to accept it as valid. Lawyers know the laws and stay up to date on changes that could affect a will’s validity.
Speak to a Hampton Estate Planning Attorney for Advice and Guidance
A last will and testament lawyer at the Hampton Roads Law Offices of John W. Lee, P.C., has the legal knowledge and the experience to create a simple will that distributes a person’s estate according to the individual’s wishes. Find out more about what they do by calling them today at (757) 896-0868 to schedule a free and confidential initial consultation with a lawyer.
We have four convenient Hampton Roads locations in Virginia Beach, Hampton, Chesapeake and Newport News servicing the surrounding cities of Norfolk, Portsmouth, Suffolk, Smithfield, Poquoson and Williamsburg and the York, James City and Gloucester counties.