Frequently Asked Questions

The following are some of the frequently asked questions regarding estate planning. 

Q:  I'm not rich; I don't have an estate.  So, why do I need "estate" planning?

A: Any of us may become incapacitated; each of us will become deceased.  How our affairs are managed for us in case of incapacity or death is what estate planning is about.  It is not about how much you have. 

When we talk about estate planning we are discussing how, and by whom, your financial decisions and medical decisions will be made for you if you can't, and who will inherit what you own at your death.  We have to make decisions about who gets what, and how, and when. 

The documents we use to complete your estate plan may include: trusts (revocable and irrevocable), Wills, Financial Powers of Attorney, Medical Powers of Attorney, Living Wills (Advance Medical Directive), and deeds. 

Q: What about my pets?  If I am incapacitated or deceased, how will my pets be taken care of?

A: We routinely ask about pets when interviewing our clients about the design of their Powers of Attorney.  If you have pets, we will include in your Power of Attorney a power that allows your agent to access your pet's records, and provide for your pet's care during your incapacity.  Similarly, we can include Pet Trusts in your Trust or your Will.  Virginia has recently passed legislation which explicitly allows legally enforceable pet trusts, and we are pleased to incorporate them into our estate planning documents.  If you review our firm bios, you will see clearly why!

Q: I really hate thinking about this stuff.  Why can't I just ignore it?  What happens if I don't get around to doing anything?

A: Let's face it; no one wants to think about disability and death.  But like other difficult decisions, it is better to handle it than to ignore it.  If you ignore it, it will continue to nag at you.  As, most likely, will your loved ones!  So …

• If you become incapacitated without a financial Power of Attorney, in most circumstances someone will have to petition the local Circuit Court to become your conservator, with the power to manage your finances for you, under supervision of the local Commissioner of Accounts.  This means accounting for every penny in, and every penny out with receipts and statements, etc.  See here for more info.
• If you become incapacitated without a medical Power of Attorney or a Living Will / Advance Medical Directive, Virginia law determines who can make medical decisions for you.  The law says your guardian can make medical decisions; if you have no guardian then your spouse; if you have no spouse then your adult children; if you have no adult children then your parents, etc.  If they are not available, or not appropriate, or are not acting in your best interest, someone may have to petition the local Circuit Court to become your guardian, with the power to manage your medical, residential, and other personal decisions. See here for more info.
• If you die without a Will, Virginia law lays out who gets what, and when.  Your estate does not escheat to the Commonwealth of Virginia if you die without a Will, and you will not pay any more taxes.  However, you will not get a say in who gets what.  And the state's plan may or may not be your plan.  In addition, in situations where a minor is to inherit, there are numerous problems. 

Q: My Will leaves everything to my three children.  But my daughter lives here in the area, and I have added her name to all my accounts.  Is this a problem?

A: If you have added your daughter to the accounts, with survivorship, at your death your daughter simply owns the money in the accounts.  Your Will does not control an account that is titled joint with survivorship.  This causes a problem two ways: it may be that your local daughter has been very helpful to you, and you want to give her the accounts.  Your other children may not know this, causing great distress to the whole family on your passing.  Or, it may be that you jointly titled the accounts without realizing that everything would go to your daughter.  At your death, she may feel she is entitled to the money, and you have given her the legal right to keep the money in the account. 

Q:  But I'm married; I don't need a Power of Attorney since I can sign for my wife, can't I?

A: In many cases, the answer is NO!  Many make this error and assume because they are married they do not need a Power of Attorney.  Almost all husbands and wives own some assets in their name alone.  An IRA or a thrift savings account are examples of assets that by law can have only one owner.  And if you own real estate, you probably own the property together.  If you were to sell or mortgage the property, both signatures are required.  A spouse has no legal authority to manage his or her incapacitated spouse's assets or make the incapacitated spouse's financial decisions if he or she does not have a power of attorney. 

Q: Should I have a Trust-based or a Will-based plan?

A: It depends, and it is your decision.  Both can provide management of assets during incapacity and distribution of assets at death.  However, some factors that your attorney will think through with you when guiding you through this choice may include:

• Whether you have specific family situations that call for special planning, such as younger beneficiaries who may need to have their assets managed for a longer period of time; beneficiaries with a disability; intended beneficiaries with spending problems, credit problems, or concerns about others who may influence your intended beneficiaries; 
• The size of your estate and the nature of your assets, considering value, beneficiary designations and joint ownership, and other similar considerations;
• Whether you are a Virginia resident who owns real estate in other states; and
• Whether you would be unhappy to have your assets, your debts, and your beneficiaries listed publicly for anyone to see. 

This list is not complete but should give you a flavor for what your attorney should consider in helping you decide between trusts and will based plans.