Virginia Estate Planning Lawyers
Offices in Virginia Beach, Williamsburg, and McLean
What Is Estate Planning
Well over half of all Americans have not planned for incapacity or death. Estate planning allows us to exert some control over our affairs after we die. It also eases the process for our loved ones by getting many of the hard decisions, like who gets what, out of the way ahead of time. Estate planning, however, is not a do-it-yourself process. You need an experienced Virginia estate planning attorney, such as those at J.S. Burton, to set up a comprehensive plan to ensure that all of your bases are covered.
While there are some commonly used estate planning tools, every plan should be customized to a person’s specific situation. The lawyers at our firm have over a decade of experience in estate planning, asset protection, and elder law and bring that experience to bear with every client we take on in Virginia Beach, Williamsburg, and McLean areas.
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Why Estate Planning Is Important?
Estate planning aims to ensure that all of your assets are preserved for your intended beneficiaries. Therefore, this process is for everyone -- young, old, parent, or adult child-- and those at various income levels. If you die without a plan in place, your assets will be distributed as designated by state law. It is also important to remember that anyone can become incapacitated or die at any time. For this reason, no matter what your age, estate planning is something to be undertaken in the present since procrastination can endanger your beneficiaries. The law firm of J.S. prepares the following estate plans for their clients:
- Powers of Attorney
- Advance Medical Directives (Living Wills)
- Revocable Trusts
- Irrevocable Trusts
- Charitable Trusts
- Trusts for Estate Tax Planning (ex: Life Insurance Trusts, Spousal Power of Appointment Trust [SPAT], Grantor Retained Annuity Trust [GRAT]
- Dynasty Trusts
- IRA Trusts
- Educational Trusts
- Special Needs Trusts
- Gun Trusts
- Pet Trusts
The Most Common Tools of Estate Planning - Wills and Trusts
Two of the most common tools used in estate planning are wills and trusts. A will is a legal document that provides instructions as to how your assets should be distributed after you die. Wills must be probated, or validated, in a special state court. This process is often time consuming, expensive, and not private since any records filed with the court are available to the public. This transparency can cause problems among beneficiaries and even among those who are not included in the will but still feel entitled to an inheritance. An additional complexity is that, if you own real property in more than one state, your loved ones may be subjected to more than one probate.
Revocable Living Trusts
Besides a will, another more popular estate planning tool is the revocable living trust. Once a trust is created, all of your assets are transferred into it. Then, upon your passing, these assets are distributed according to the terms of the trust.
Trusts are highly customizable and allow assets to pass automatically upon the death of the grantor so no probate process is necessary. Trusts may be less expensive, less time consuming to administer, and are much more private. Even so, a will is usually drafted as well to cover any of the assets that were not transferred into the trust in time. Trusts may also save you from estate taxes, lawsuits, and creditor claims and provide protection against forced Medicaid spend-downs.
The attorneys of J.S. Burton regularly create trusts of all kinds on behalf of estate planning clients and even serve sometimes as trustees.
Probate and Estate Administration
J.S. Burton is available to represent you in the probate or trust administration process. We are often appointed as executors of clients' estates and can assist if the appointed executor is unable to fulfill his or her duties. We can competently handle all related matters, making the process much more manageable for beneficiaries of the estate.
Estate Planning for Pets
When engaging in estate planning in Virginia, it is common for people to name guardians for minor children, to specify which family members should get which heirlooms, and to designate beneficiaries of their estate, but planning for the care of one’s pet is often overlooked. Part of responsible pet ownership is having a plan in place for the care of your pet in the event of your incapacity or death.
If you are one of the 85 million families in the United States who have a pet, then consideration must be given to develop an estate plan for your pet. There are a variety of documents that can be used to help ensure your pet is provided for in the event of your incapacity or death. These include a pet trust, will, durable power of attorney for pet care, care contracts, and care instructions.
If you own firearms, it is important to include a gun trust in your estate plan. This document is specifically drafted to address and avoid potential consequences for your beneficiaries. Because guns are regulated by both state and federal laws, these assets require careful attention form an experienced estate planning attorney.
Other Estate Planning Instruments
Regardless of your assets, a durable power of attorney over person and property as well as a living will (also known as an advance healthcare directive) should both be executed to cover you in the event that you become incapacitated. These documents will allow your agent to make important healthcare and financial decisions for you without the hassle of going through a court-controlled guardianship or conservatorship proceeding.
An experienced estate planning attorney can explain which options are right for your specific circumstances. Contact the attorneys of J.S. Burton at (888) 885-9001 for a free consultation today.
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Learn About Your Legal Options
What estate planning documents should I have?A comprehensive estate plan should include the following documents, prepared by an attorney based on in-depth counseling which takes into account your particular family and financial situation:
A Living Trust can be used to hold legal title to and provide a mechanism to manage your property. You (and your spouse) are the Trustee(s) and beneficiaries of your trust during your lifetime. You also designate successor Trustees to carry out your instructions in case of death or incapacity. Unlike a will, a trust usually becomes effective immediately after incapacity or death. Your Living Trust is "revocable" which allows you to make changes and even to terminate it. One of the great benefits of a properly funded Living Trust is the fact that it will avoid or minimize the expense, delays, and publicity associated with probate.
If you have a Living Trust-based estate plan, you also need a pour-over will. For those with minor children, the nomination of a guardian must be set forth in a will. The other major function of a pour-over will is that it allows the executor to transfer any assets owned by the decedent into the decedent's trust so that they are distributed according to its terms.
A Will, also referred to as a Last Will and Testament, is primarily designed to transfer your assets according to your wishes. A Will also typically names someone to be your Executor, who is the person you designate to carry out your instructions. If you have minor children, you should also name a Guardian as well as alternate Guardians in case your first choice is unable or unwilling to serve. A Will only becomes effective upon your death, and after it is admitted by a probate court.
A Durable Power of Attorney for Property allows your agent to carry on your financial affairs in the event that you become disabled. Unless you have a properly drafted power of attorney, it may be necessary to apply to a court to have a guardian or conservator appointed to make decisions for you during a period of incapacitation. This guardianship process is time-consuming, expensive, emotionally draining and often costs thousands of dollars.
There are generally two types of durable powers of attorney: a present durable power of attorney in which the power is immediately transferred to your agent (also known as your attorney in fact); and a springing or future durable power of attorney that only comes into effect upon your subsequent disability as determined by your doctor. Anyone can be designated, most commonly your spouse or domestic partner, a trusted family member, or friend. Appointing an agent assures that your wishes are carried out exactly as you want them, allows you to decide who will make decisions for you, and is effective immediately upon subsequent disability.
The law allows you to appoint someone you trust to decide about medical treatment options if you lose the ability to decide for yourself. You can do this by using a Durable Power of Attorney for Health Care or Health Care Proxy where you designate the person or persons to make such decisions on your behalf. You can allow your health care agent to decide about all health care or only about certain treatments. You may also give your agent instructions that he or she has to follow. Your agent can then ensure that health care professionals follow your wishes. Hospitals, doctors and other health care providers must follow your agent's decisions as if they were your own.
A Living Will informs others of your preferred medical treatment should you become permanently unconscious, terminally ill, or otherwise unable to make or communicate decisions regarding treatment. In conjunction with other estate planning tools, it can bring peace of mind and security while avoiding unnecessary expense and delay in the event of future incapacity.
Some medical providers have refused to release information, even to spouses and adult children authorized by durable medical powers of attorney, on the grounds that the 1996 Health Insurance Portability and Accountability Act, or HIPAA, prohibits such releases. In addition to the above documents, you should also sign a HIPAA authorization form that allows the release of medical information to your agents, your successor trustees, your family and other people whom you designate.
How do I name a guardian for my children?If you have children under the age of eighteen, you should designate a person or persons to be appointed guardian(s) over their person and property. Of course, if a surviving parent lives with the minor children (and has custody over them), he or she automatically continues to remain their sole guardian. This is true despite the fact that others may be named as the guardian in your estate planning documents. You should name at least one alternate guardian in case the primary guardian cannot serve or is not appointed by the court.
What does my estate include?
Your estate is simply everything that you own, anywhere in the world, including:
- Your home or any other real estate that you own
- Your business
- Your share of any joint accounts
- The full value of your retirement accounts
- Any life insurance policies that you own
- Any property owned by a trust, over which you have a significant control
Why is it important to establish an estate plan?
Sadly, many individuals don’t engage in formal estate planning because they don’t think that they have “a lot of assets” or mistakenly believe that their assets will be automatically shared among their children upon their passing. If you don’t make proper legal arrangements for the management of your assets and affairs after your passing, the state’s intestacy laws will take over upon your death. This often results in the wrong people getting your assets as well as higher estate taxes.
If you pass away without establishing an estate plan, your estate would undergo probate, a public, court-supervised proceeding. Probate can be expensive and tie up the assets of the deceased for a prolonged period before beneficiaries can receive them. Even worse, your failure to outline your intentions through proper estate planning can tear apart your family as each person maneuvers to be appointed with the authority to manage your affairs. Further, it is not unusual for bitter family feuds to ensue over modest sums of money or a family heirloom.