Who Gets My House When I Die in Virginia?

If you own a home in the U.S., you will want to have set up an estate plan (or a Peace of Mind Plan as we prefer to call it) so that you can ensure that it goes to the individual(s) you want it to when you pass away. If your home is jointly owned with a spouse or others, the surviving owners are transferred your share of the house immediately upon your death. There are some legal formalities after that but the house title is quickly transferred.

But for those with no joint owners, the house will be part of your probate Estate unless you take certain action while you are alive.  One option for your home is to place it in a Trust so that it will not only go to whom you desire, but it will also help you in avoiding the probate process, which can be both lengthy and expensive. 

Another probate avoidance option available in Virginia and many other states (though sadly not Maryland or DC) is the use of a Transfer on Death Deed (TOD Deed) that states who gets your real estate upon your death and keeps it out of probate.

We can provide you with more information on the Trust or TOD Deed options if you contact us. If you have not placed your house in a Trust or used a Transfer on Death Deed, there are a number of different scenarios that could occur when you die that depend on whether you have a Will or not, and the makeup of your surviving heirs.

If You Have a Will

While those in Virginia who die with a Will can ensure that their property is inherited, as they so desire, their loved ones will still have to go through the probate process. In some states probate can be a long and expensive ordeal but Virginia probate is not bad in comparison to others–but can still take time and cost quite a bit. The only Estates of this kind that can avoid the probate process are those that are concerned “small.” A small Estate is one in which the decedent had no real property (home) and $50,000 or less in personal property. In such a situation the recipients would have to wait at least 60 days since the individual passed away. Any Estates with real property must go through the probate process. 

If You Don’t Have a Will

If you die in Virginia without a Will, this is called dying “intestate.” Virginia has its own intestate succession laws that will apply. Under these laws the court will choose an Executor of the Estate, who will assist in settling the decedent’s debts, including any taxes he or she owed. The Estate will then be divided as follows:  

  • If the decedent has a surviving spouse and no children, the spouse will receive the entire estate; in this case the entire house (assuming he or she was not a joint owner already for all of these scenarios). 
  • If the decedent has a surviving spouse and children who are of them both, the surviving spouse will still receive the entire estate. It’s his or her decision to share it all or in part with the children. It’s important to note that Virginia doesn’t differentiate between a biological child and an adopted child. 
  • If the decedent has a surviving spouse and one or more children who are not born or adopted of that marriage, those children will receive two-thirds of the estate, divided equally among them. The surviving spouse will receive the other third of the estate. In such a situation, the house may have to be sold so that each recipient could receive the proceeds to which he or she is entitled. However, if the decedent had enough other assets that the children could receive their rightful share through other property, etc., then the surviving spouse could get to keep the house. 
  • If the decedent has children but does not have a spouse, the entire estate will be divided equally among them. In this case the children would receive equal shares of the house, or when possible the value of the house could be offset by other assets so as to allow one child the house while the others receive other assets of the same value. 
  • The decedent’s grandchildren are not automatically entitled to any inheritance under Virginia’s intestate succession laws – unless their parent died before he or she was born. If a child is born after his or her parent dies, he or she is then entitled to the same inheritance rights as if he or she was a child born during the decedent’s lifetime. This also holds true for children who are conceived via artificial insemination, using the DNA of their parent even after he or she has died.
  • Virginia’s intestate laws differ from many other states in regards to children who are born out of wedlock. Without a will or a trust, these children may only inherit under two different circumstances:
    1. The decedent and the child’s mother were married at some point even though their marriage was later found illegal, voided or dissolved by the courts; or
    2. A genetic test reveals paternity, and the father acknowledges the child as his own at some time while he is still alive.

Virginia’s Intestate Succession Law Hierarchy

Finally, if the decedent has no surviving spouse and no children, his or her assets (including the home) will go to his or her parents. BUT:

If the parents are not alive… The assets will be split equally among any siblings.
If there are no siblings or they are no longer alive… The assets will be split equally among any nieces and nephews.
If there are no nieces or nephews or if they are no longer alive… The assets will be split equally among any paternal or material grandparents.
If there are no paternal or maternal grandparents or if they are no longer alive… The assets will be split equally among any paternal or maternal aunts and uncles.
If there are no paternal/maternal aunts and uncles or if they are no longer alive… The assets will be split equally among any paternal or maternal cousins.
If there are no paternal/maternal cousins or if they are no longer alive… The assets will be split equally among any great-grandparents and great aunts and uncles.
If the decedent has no living family members… The estate (which includes the house) will go to the state of Virginia.

That’s why if you want to ensure that your Estate, including your house, goes to whom you desire, it’s important to consult with a knowledgeable and experienced Virginia estate planning attorney. 

Reilly Law PLC Helps Those in Virginia Who Are in Need of a Comprehensive Peace of Mind Plan

At Reilly Law PLC, we understand the importance of protecting your assets – and your wishes. We will help you to create a comprehensive Peace of Mind Estate plan (which includes your house and other assets), as you desire, to make the lives of your loved ones easier. To learn more or to schedule a free consultation, contact us today!

What to Know About Estate Planning for Non-U.S. Citizens

Known as a melting pot of the world, the U.S. is made up of people from all over the world. It is also home for numerous non-U.S. citizens, who spend a large part of their lives in this country. The Washington, DC metro area has many non-citizens residing here, some being lawful permanent residents (“Green Card” holders), while others are here on educational, business, or other visas. And some folks, of course, do not have any formal legal status in the U.S.

Many of these individuals not only live in the U.S. but also die in the U.S. So what happens when a non-U.S. citizen passes away? When a non-U.S. citizen passes away in the U.S. his or her estate will generally be distributed according to the state law of the state where they were residing, but only those assets with ties to the state. For example, Virginia has no authority over any property in the country of Colombia, but similarly has no authority over property in the District of Columbia. In addition to the distribution of real estate and personal property, there are other issues that  many non-U.S. citizens forget to account for which can add complexity and cost to the settling of an Estate. 

You Have Had A Funeral–What Happens Next?

Sometimes non-U.S. citizens who die do not want to be buried in the U.S., but instead they – or their families – would like their body/cremains returned to their country of origin. While this is legally permissible and there are services that specialize in this type of transport for burial, many non-U.S. citizens fail to set aside the money needed to return their remains back to their home country and sometimes do not make it clear to their loved ones that this is their intention. This makes it much more difficult for families looking to finance this final trip. An insurance policy intended for this specific activity can be an excellent way to ensure that this process goes smoothly and efficiently.

When is there a need to involve a Probate Court?

A non-citizen dies in VA/DC/MD and Lived for an Extended Period of Time There

When someone passes away in Virginia, Washington, DC, or Maryland, and wants to be buried there, it’s probable that the probate court will have jurisdiction in regards to overseeing the distribution of the decedent’s assets. This is even more likely if the decedent had lived in the U.S. permanently or for a long period of time at the time that they died.

Owns Property in VA/DC/MD But Does Not Reside There

If a non-U.S. citizen owns property, particularly real estate, in a state or in DC, but does not live there, the probate court may have to conduct a secondary proceeding known as Ancillary Probate. Non-real estate property will be distributed according to the laws of the U.S. state in which they resided or the laws of their country of citizenship.

Does Not Own Property in VA/DC/MD and Does Not Reside There

If the individual does not reside in or own real estate in Virginia or the surrounding jurisdictions served by Reilly Law, PLC, the probate process will likely occur in the place that has the majority of the individual’s property, which may well be their country of citizenship.  However, the estate executor or a representative may be required to file income taxes for the U.S. and the state of residence as well as an estate tax return if their assets exceed the $11 million plus Federal estate tax exemption. Other taxes may also be owed to another state or country.

Reilly Law PLC Helps Those in the DC Metro Area Who Are in Need of a Comprehensive Estate Plan

At Reilly Law PLC, we understand the importance of protecting your wishes. We call what we do at  “Peace of Mind Planning” because we work with and for our clients to help them get a customized plan in place. We will help you to create a living will and a comprehensive estate plan that meets your wishes and makes the lives of your loved ones easier. To learn more or to schedule a free consultation, contact us today!

Can Dementia Impact the Validity of Your Estate Plan?

When you create an estate plan, one of the most important things is to ensure that its validity won’t be called into question when the plan documents are needed. This could be use of a Durable General Power of Attorney in the event of incapacity, or use of a Will or Trust after someone dies and the Estate enters the administration process. What are the issues, then, that may leave such documents open to doubt? 

In Virginia, as in all states, it is important that the person signing any estate document (the “creator”) is at least age 18 (or younger if active duty military) and of “sound mind” when creating such document.  Age determinations are pretty straightforward but what indicates that an individual was of sound mind at the time of creation?

What Makes for a “Sound Mind?”

Sound mind, commonly referred to as testamentary capacity, demands that the creator understands:

  1. What exactly they are doing;
  2. The type of property and assets in question; and
  3. The relationship that they have with the individuals they include in the document (as well as those they may choose to exclude!). 

For millions of families who have a loved one struggling with a dementia diagnosis, sound mind may be called into question. This is because dementia is a disease that can impact an individual’s memory. However, it is important to understand that dementia is a progressive disease. This means that an individual diagnosed with dementia will worsen over time. Therefore it does not always take away an individual’s capacity right away and a person may have “good” times and less good times in any given day. 

Early Stage Dementia and Estate Planning

Often early stage dementia only impacts short-term memory at first. This may mean that the individual tends to lose items frequently and forgets a lot. However, this does not mean that they are unable to understand the three aforementioned requirements of testamentary capacity. Therefore an individual with dementia may still be perfectly capable of creating a valid estate-planning document such as a will or trust. 

How Might You Assist?

When your loved one still has the mental capacity to create a valid estate plan, they may still benefit from your assistance. You may be able to help them by:

  • Assisting with making a complete list of their assets;
  • Speaking with them about their wishes and taking detailed notes; and
  • Encouraging them to consult with a qualified estate-planning attorney who can help to ensure that their wishes are adequately carried out. 

Just keep in mind that you are unable to sign as a witness to your loved one’s estate planning document if you are a beneficiary.

Our practice in cases where there are questions of testamentary capacity is to gently question our client about some personal things such as who is in the room with them or who came with them to the office, the names of their children and grandchildren, if any; some general things such as the day of the week, date of the month, season, etc., and then some specific things such as their understanding of what they are in our office for, what they want from our services, if anyone is forcing them to do anything they don’t want to do, and if they are not providing equally for their beneficiaries or are disinheriting anyone, or are providing for someone other than family, we ask them to explain why they want to do that. Note that for these last questions we try to talk only to the client without any family members present to be sure there is no undue influence, another reason that estate plans can fail upon a challenge.

Since many people will often question the validity of an estate plan created by someone with early stage dementia, it’s important that you do all you can to prevent them from contesting it during the probate process. 

It is for this reason that you should keep your loved ones in the loop as to your wishes and their estate plan and to consult with a qualified Virginia estate-planning attorney whose assistance will help to prevent much of this questioning. 

Reilly Law, PLC Helps Those in Virginia Who Are in Need of a Comprehensive Estate Plan

At Reilly Law, PLC, we understand the importance of protecting your assets and expressing your wishes. That is why we call what we do Peace of Mind Planning. We will help you to create a comprehensive estate plan as you desire that makes the lives of your loved ones easier. To learn more or to schedule a free consultation, contact us today!

Choosing a Guardian for Your Children: What to Consider

No one likes to think about what would happen if they should pass away unexpectedly. However, for parents, one of the biggest responsibilities is to ensure that their children are safe and cared for. This is why it is so important to choose a guardian for your children. Guardianship is a legal process in which an individual is named to serve as the decision-maker of another person. When you select a guardian for your children, that individual would take care of your children should you not be around to do so. 

Those who fail to choose a guardian for their children could be setting up a concerning scenario in which their relatives may argue with one another in court about who is to get the children or their relatives may agree – but on a different guardian. Worse yet, the court could end up deciding on a guardian for them. This is why it’s so important to nominate a guardian while you still have the ability. I have heard it said that young parents spend more time planning their next vacation than in planning for potential guardianship of their children. While I can certainly understand that–who wants to think about serious illness/injury or premature death–but it is a critical part of what we call Peace of Mind Planning and should not be put off.

So how do you select the right person? 

When choosing the correct guardian for your children, there are some things that you can do to ensure that you take the best choice. These things include:

  • Making a list of people you know and trust who would take care of your kids;
  • Considering each person’s philosophies and values (such as on religion, morality, education, and child-rearing among others);
  • Weighing whether each person on the list is a good fit;
  • Considering how your kids would fit into their lifestyle;
  • Deciding whether you would be comfortable with a sole guardian should a couple divorce or a spouse die;

It is often good to make a decision but also to provide for a backup choice should something prevent the first from taking on these responsibilities. It is very important that you and your spouse or co-parent can agree on your choices.

You may want to consider the use of a Child Protection Plan in order to choose a temporary custodian and your will to nominate a permanent one. A temporary custodian cares for your children should you temporarily become unable to do so (e.g. are severely injured in a bad car accident), while a permanent guardian cares for your children should you no longer be around (e.g. you are killed in a bad car accident). 

Why would temporary custodians and permanent guardians differ?

When you choose a permanent guardian for your children who lives out of state and would have to upend their life in order to care for your children, you may not want to make them do so if your inability to care for your children is only temporary. It is important to remember that your temporary guardians are not appointed in your will, which is used after you pass away, but rather through a Child Protection Plan. 

Once you have decided whom you want, it is important to speak with them about their willingness to accept the responsibility. You may also wish to seek the opinions of your children if they are old enough to comprehend the situation. Additionally, it can help to write a Letter of Intent n order to share what you believe is important in regards to your children: your parenting values, your hopes and dreams, etc.

Should you select friends over relatives, it is a good idea to explain the decision in writing, so that it cannot be contested later on. By nominating a guardian (and a temporary custodian) for your kids, you can take comfort in knowing that they will remain protected no matter what. 

Guidance for Your Guardians

As part of the guardian identification process you may want to start a folder or document with your ideas on what is important in the raising of your children should someone have to step into that role. At Reilly Law PLC we provide our Young Family Plan clients with a template created by a colleague of ours that gives our clients some ideas on what things they may want to include in their guidance document or folder. It should be updated as your children get older and their interests change but it can be an invaluable guide to what you think is important for your children and I have heard from colleagues that guardians suddenly thrust into this challenging role really appreciate the guidance they are given. It gives the guardian some Peace of Mind themselves!

Reilly Law PLC Helps Those in Virginia Who Wish to Establish Guardianship for their Children

At Reilly Law PLC, we understand the importance of protecting your wishes and affording you peace of mind in knowing that the people you care most about will continue to be cared for and protected. We will help you to create a comprehensive estate plan that meets your wishes and makes the lives of your loved ones easier. To learn more or to schedule a free consultation, contact us today!

Creating an Estate Plan? Don’t Forget Your Digital Life

With more and more technology now becoming a staple in our daily lives, it is very important to take your digital life into consideration when establishing an estate plan. Keeping up with one’s digital presence has been difficult in the past, but now that estate planning laws have almost caught up with technology, estate plans (or as we prefer to call them, Peace of Mind Plans) should include what should happen to your files, accounts, transactions, and other digital assets.

What Are Digital Assets?

Simply put, a digital asset is any account or service online that is protected by a type of log-in security feature. This includes things such as your cloud accounts, social media, web domains that you own, smartphone apps, and online financial accounts. Since things such as medical records are now being digitized, and are password-protected but accessible online, they are becoming another part of your digital life. If, like many people, your photos and music and backup files are stored “in the cloud” you have substantial digital assets that need to be cataloged and made accessible to a trusted Agent should something happen to you.

How Can I Determine My Digital Assets?

In order to determine all of your digital assets, it is important that you first establish your inventory, which may include any of the things previously mentioned. Then it is important to create another list of any digital liabilities, which include any of your automatic payments.

Part of our complete legal readiness package for our clients at Reilly Law, PLC is something we call our Peace of Mind Planning Roadmap Organizer. It provides a one-stop location for all of your critical information, to include your digital assets, to allow someone you trust to take care of things if you are unable to do so. 

Using the Roadmap Organizer (or something similar) you start cataloging your digital assets by listing each name and web address for every asset. Be sure to include any account numbers and the full name(s) on the account. To ensure that your heirs will be able to access these accounts, also include information such as usernames and passwords. Indicate whether there is a secondary authentication on the account (e.g. a code is sent to your cell phone). If your accounts require answers to any security questions, be sure to include them as well. 

Finally, once you have established a complete list of your digital assets, it is important to determine whom you wish to give access to for each asset and what should be done with it after you have passed away. You can then include those wishes in your living trust and will. 

Barriers to Succession

Although it once proved difficult for executors or heirs to gain access to another’s account, this is no longer the case. For years people were prevented access to accounts and passwords due to a federal law making it a crime for someone to access an online account that isn’t actually theirs. However, most states, including Virginia, have adapted some version of the Uniform Fiduciary Access to Digital Access Act, which allows for the Executors of an Estate to manage the deceased’s digital financial assets without gaining special permission – unless the Will says otherwise. However, without express permission, the Executor of an Estate is not entitled to access the decedent’s social media accounts, email, or text messages unless he or she has been granted such access by way of a legal document or order. 

As digital assets continue to grow, many providers have begun initiating their own digital asset policies, such as Google and Facebook, which allow you to designate who should be granted access to your account after you pass. And, of course, as technology advances, so does the law, although changes to the law are always lagging behind changes in technology!

Reilly Law PLC Helps Our Clients Organize Their Financial and Digital Assets and Incorporate Them Into Their Peace of Mind Plan.

It’s difficult enough when a loved one dies, but when his or her heirs are left to deal with the inconvenience of an unresolved digital presence, it can create additional aggravation and unnecessary costs.  That is why it is so important to consult with a knowledgeable and experienced Estate Planning Attorney as soon as possible. 

At Reilly Law PLC, we understand the importance of protecting what should be yours. We will help you to create an estate plan that meets your needs and keeps you protected. To learn more or to schedule a free consultation, contact Reilly Law PLC today!

What High-Risk Professionals (and others) Need to Know About Estate Planning

Although no one is immune, certain professionals such as attorneys, physicians, financial advisors, and business owners are much more inherently exposed to lawsuits. Because of this, it is extremely important to have a clear financial and estate plan in place so as not to put yourself or your family at any additional risk. 

It may appear as though occupations such as physicians and attorneys are at a higher risk for medical or legal malpractice respectively, risks that can be addressed, at least in part, by appropriate malpractice or other insurance. What many would be surprised to learn is that these cases are not the biggest threat that they face. They are more at risk from automobile accidents, divorce, poor tax or business planning, or bad investments. 

Insurance and Business Entity Choice

Luckily, you can help to protect your personal and family assets from any threats to your practice by having appropriate professional and personal insurance and by selecting the right business entity for you. Doing so can maximize both your short- and long-term success. 

We mentioned malpractice insurance above for doctors and lawyers. Other professionals can get protection for their business actions by having errors and omissions (E&O) insurance or other professional liability coverage. In addition, business owners should also have substantial umbrella liability coverage on top of significant personal liability insurance. Umbrella insurance is usually very inexpensive and you can get millions of dollars of coverage for a reasonable fee. Insurance companies can offer reasonable rates on this type of insurance since an umbrella policy only pays a claim that is beyond your regular insurance coverage so is in the nature of a low probability but potentially very costly incident. Some umbrella policies will cover business activities and certainly those who own real property that is leased should have a high dollar umbrella policy.

But beyond the essential insurance coverage, many professionals often choose to operate as a sole proprietorship or general partnership (if they are a co-owner). This can be a good choice for some, but offers essentially no protection for claims against personal assets for claims that exceed (or are not covered) by any insurance policies. It is better for for at-risk professionals to create some form of business entity beyond a simple sole proprietorship or partnership. A business entity, if treated like a business and not a personal “piggy bank,” can offer significant additional protection  from liability. The most common protective entities for businesses include corporations, limited liability companies (LLCs), and limited liability partnerships, with LLCs rapidly become the most common form of business entity. 

At Reilly Law, PLC we can work with clients who want to set up an LLC or be a resource to those clients to get them to the right professionals to assist them with their business entity formation.

Can Trusts Provide Protection?

Although the standard Revocable Living Trust we prepare for clients for estate planning purposes does not offer any asset protection as it is simply your alter ego, the process to develop your RLT plan is a great opportunity to examine your situation and explore planning options that may offer some asset protection or at least risk management.

Beyond the risks for our clients themselves, this Peace of Mind Planning process is a time to consider other risks that could have an impact on your financial future and that of your family members. We all have heard horror stories of divorces completely undermining well-thought out financial and estate plans. Similarly there are countless stories of second (or third or later) marriages not having the right kind of planning in place and the unintended consequences and hard feelings that are the result. And not to forget the concerns of many clients of their children getting an inheritance that is lost in a divorce. These “future ex-in-laws” can reap the benefits of your hard earned money. Not many of our clients have ever wanted that result. There are planning tools to help ensure that your intentions are actually followed and appropriate asset protection is in place.

There are some asset-protective tools include a Domestic Asset Protection Trust or a Third Party Settled Spendthrift Trust. If an individual legally transfers his or her assets to one of these trusts, these assets will then be protected should someone bring a claim against the professional or his or her business. However any asset protection trust is at risk of being rendered useless if created too late or not operated in accordance with the applicable law. The best time to create an estate plan is yesterday. The next best time is right now. You cannot wait until you are faced with a lawsuit to start planning. It is important to remember that asset protection is only effective if it is out in place before any threat. 

Reilly Law PLC Helps Clients Who Are Interested in Protecting/Preserving their Assets Through an Estate Plan

You’ve worked hard for the success of your business, your assets, and all that you own. Do not risk having to give it all away. Do something about it. The best way to properly protect your business assets is by consulting with a knowledgeable and experienced Estate Planning Attorney as soon as possible. 

At Reilly Law PLC, we understand the importance of protecting what should be yours. We will help you to create an estate plan that meets your needs and keeps you protected. To learn more or to schedule a free consultation, call Reilly Law PLC at 703-579-1936 today!

Guardianship Considerations for Young Families

If you have young children or are considering starting a family, then you need to familiarize yourself with Virginia’s guardianship process. As responsible parents, you must have a plan in place to protect your children’s best interests should you pass away or become incapacitated. If you don’t choose a guardian for your children, the court will make this decision for you. To get started with the guardianship process, please review the information below and contact Reilly Law as soon as possible to discuss your options. We offer our clients a Guardian Instructions Template that they can customize and address the things that are important to them for their childrens’ futures. Some considerations in selecting your guardian(s) is in the following paragraphs. 

What to look for in a Guardian 

Values  

The guardian you choose should be someone who shares your values, goals, and parenting style. In other words, it is important to choose a guardian who you feel will raise your children like your own. 

Stability

Children need stability, so make sure the guardian you choose is capable of providing your kids with a stable environment. This includes both financial and emotional stability. So this individual must be mature, caring, and capable of taking care of your children’s financial needs. 

Longevity

The person you choose as your children’s guardian must be young enough to care for your children through adulthood. Also, this individual should be in good health. This generally excludes people who are elderly or sickly. By choosing someone who may not be capable of caring for your children until they reach adulthood, you may be setting your children up for future instability. And while physical disabilities don’t necessarily preclude good parenting, it’s imperative to choose an individual who is physically capable of withstanding the rigors of raising children.

Willingness

Although this may be obvious, you must get approval from an individual before naming him or her as your children’s guardian. You should exclude from consideration anyone unwilling or unable to perform the duties of a guardian. 

Character 

Refrain from considering individuals with a bad character when choosing a guardian. Even if someone meets all of the above qualifications, it won’t matter if he or she has poor character, as this will ultimately be damaging for your children. Ultimately a judge will decide if the person or persons you have chosen (or the ones seeking guardianship if you have not made any nominations) will be an appropriate guardian using a best interests of the child(ren) standpoint.

Division of Responsibility

You have the option of naming someone as your prospective guardian to be the caretaker of your children and someone else to be in charge of the financial aspects of your childrens’ lives. This may be a good idea if your caregiver choice is just not good with money or you would rather have a system of checks and balances between the caregiver and the financial custodian.

Contact Reilly Law, PLC to get your Peace of Mind Plan in place  

At Reilly Law, PLC, we are passionate about ensuring that you are legally prepared for all of life’s unexpected events and challenges. Our primary goal is to utilize the estate planning process to provide you with the peace of mind you deserve. Therefore, for young families, we offer a comprehensive and affordable Young Family Peace of Mind Package. With this package, you can rest assured that your loved ones will be well taken care of should anything ever happen to you. If you’d like to provide your family with the security they deserve and begin the young family planning process, please contact us today.

What Same-Sex Couples Should Know About Estate Planning

Estate planning is often confusing for many people. Estate planning for same-sex couples can seem even more complex regardless of whether or not you are married. Luckily, estate planning for same-sex couples doesn’t have to be overwhelming or difficult to understand. As the laws continue to change, it is as important as ever to consult with an experienced estate planning attorney who understands the planning issues for those in the LGBTQ community.

Landmark Supreme Court Case Changes Things

The good news is that most planning issues are the same now for same-sex and non-same-sex couples. Prior to 2015 when the United States Supreme Court upheld the rights of same-sex couples to marry in every state, estate planning for same-sex couples used to prove much more difficult. Now that all 50 states recognize same-sex marriage, they are entitled to the same rights that heterosexual couples have been entitled to and have the same tax benefits (and penalties in some cases) as non-same-sex married couples.

For many couples – and individuals – estate planning is often difficult to think about because it is associated with disease and death. Or as we call it with our clients–the 5 D’s: Disease, Disability, Dementia, Death, and Denial! Of course a client came up with a 6th D–saying it was all very Depressing! However, the best time to plan for your estate was yesterday but the second best is today. We call what we do Peace of Mind Planning because it is smarter to be proactive rather than reactive, and getting your planning done can give you and your loved ones peace of mind.

As I said, the planning issues for married couples is pretty much the same these days whether they are same-sex of not. But the planning for unmarried couples, either in informal relationships or is some type of domestic partnership is very different than married couples. But interestingly, the legal issues for unmarried couples were always very similar regardless of whether the couple was same-sex of heterosexual. It still required having a legally sufficient plan in place to avoid unintended consequences.  

Informal couples or domestic partners run into a lot of issues when it comes to a lack of estate planning documents. You will have no legal authority to access your partner’s health records and will be unable to make decisions regarding their medical care and it may prove difficult to access the distribution of employee benefits when your domestic partner passes. And without a Will or Trust in place naming the partner as a beneficiary, the partner is not covered by the laws of intestacy of any jurisdiction and will be unable to receive any of the deceased partner’s property.  Ordinarily, when an individual passes intestate (without a will), the property will automatically go to certain heirs of the estate (e.g. spouse or children if they have any). But when you are not married, the property will not automatically pass to you and you may experience difficulty establishing standing to open a probate estate for your partner who has passed.

If the surviving partner is named as a life insurance or retirement account beneficiary he or she will receive those benefits but will not be able to make any elections that are available only to a married couple. A plan to address things like that is a key part of a Peace of Mind plan.

Facing the “5 D’s” Without an Estate Plan

The bottom line is, if you are in a same-sex relationship and are not married, you must plan – even minimally – should you desire for your partner to receive any property or benefits. Additionally, you must be sure to nominate someone to make medical decisions for you should you be found legally incapacitated. Don’t think your partner can be that person unless he or she is specifically named in a valid legal document–they will not. Basic estate planning documents include:

  • A Last Will and Testament and/or a Revocable Living Trust
  • Durable Power of Attorney for financial matters
  • Durable Health Care Power of Attorney
  • Living Will/Advance Medical Directive
  •  Do Not Resuscitate Order or Medical Order on Life Sustaining Treatment (MOLST/POLST) [if appropriate]
  • Beneficiary Designations for life insurance policies, annuities, and retirement accounts (401ks/403bs/IRAs/Roth IRAs as well)

The Attorneys at Reilly Law, PLC Help Create Estate Plans for Same-Sex Couples in the Greater Washington DC area.

Although estate planning can appear quite complex, it is extremely important and should not be shied away from. It is best to consult with an estate planning attorney in D.C. who has experience working with individuals in the LGBTQ community. At Reilly Law, PLC, we can help to walk you through the process of estate planning to ensure that you and your loved ones are protected and that your wishes be honored. To learn more or to schedule a free consultation, visit us online or call us at 703-579-1936 today!

My daughter lives in Virginia Beach. My son went to Virginia Tech. I worked at the Washington Navy Yard… Legal Readiness in the Aftermath of Tragedy

This country’s most recent mass shooting last week in Virginia Beach, Virginia struck home with me, but it’s not the first time that’s happened and I’m sure many of you have similar experiences where you have some relation to the tragedy that occurs either because of a mass shooting event like that or natural disaster or other unexpected and tragic occurrence.

My daughter is on active duty with the Navy, living and working in Virginia Beach. While there was very little chance that she was at the municipal building complex during the shooting event, when you hear about something happening in a place where a loved one is living or visiting it still causes your heart to sink and your mind to wonder.

Fortunately she was safe and we were able to communicate with her quickly. Sadly, that wasn’t the case for many other families who lost loved ones or had family and friends with serious injuries from the mass shooting. This wasn’t the first experience our family has had with this kind of event. My son is a graduate of Virginia Tech. He was not there for the mass shooting on the campus, he began his studies there the following year. But by coincidence we were there with him on the Friday before the shooting for his campus visit. Like him, we were very impressed with the campus, the academic programs, and with the students we met. He decided on the spot that Virginia Tech was the school where he wanted to go. Just a few days later we were watching the horror of the scenes of the shooting, seeing the beautiful campus in complete chaos. But we also saw in the aftermath of this horrific tragedy the sense of community at Virginia Tech and it reinforced in my son’s mind that this is the school he wanted to attend. And he did. He is a graduate and a proud Hokie alumnus.

I worked for many years at the Washington Navy Yard. I was not there at the time of the mass shooting at the Navy Yard. I was working in my own practice by then. Of course, it struck home with me as there was a good chance that I’d run into some of those victims during my time there and certainly knew the building where the shooting occurred. I felt obligated to do what I could and I was glad to be able to help in some way in the aftermath.

And there are many more stories like that. We lived in Charleston, South Carolina. We have visited Las Vegas. And the list goes on. But my point here is not to get into the political and moral discussion of gun control or related matters. It’s the aftermath that I am focusing on. It’s the how do we deal with the human part of the tragedy and help the families of the victims. Because in many cases in my experience, certainly at the Navy Yard and elsewhere, many of those victims did not have their legal affairs in order. So in addition to the tragic and unexpected loss of a family member, the families now had to go through the struggle of sorting through financial and legal matters that could easily have been in place and planned for.

While these are extreme examples, they highlight the importance of legal readiness. We don’t anticipate going to work one morning and not coming home because of a mass tragedy. But it could (and sadly) does happen. Or you could have a sudden illness. You could have an accident. These are literally matters of life and death. And that is the point of this article — the aftermath of an unexpected and life changing event. But more importantly, preparing in advance for these life and death matters.

The goal is to be prepared in the unlikely – hopefully — chance that something unfortunate might happen. It does not have to be a tragic shooting. It could be something as simple (and presumably far more likely) as a sudden heart attack, stroke, auto accident, or plane crash that creates the need for legal readiness documents. Having a plan in place means that your family has what they need to handle the various legal and financial matters that arise from a sudden death or incapacity. If you have that plan in place your loved ones will not have the additional stress of dealing with all those matters at the same time they are dealing with the unplanned loss or disability. And again, this does not have to be a mass shooting. Beyond the list above of potential life changing events, like many of you my family has also lived through hurricanes, tornados, blizzards, and other natural disasters that can also cause loss of life or serious injury. Basically it is all of those things that life throws at you. And that is what legal readiness is all about. “Having a plan in place for the just in case.”

We call what we do at Reilly Law, PLC Peace of Mind Planning. And at its core, that’s what Peace of Mind Planning is all about – legal readiness. If you have a Peace of Mind Plan in place, should one of these tragic incidents occur, your loved ones will at least have the comfort that you have things in order and have made a very difficult time a little easier for them. They can focus on their emotional support needs rather than be distracted by legal and financial issues right then. It’s not something that we want to think about, but it’s not something that we could ignore either.

I spent 20+ years as a Navy Judge Advocate and a good reason for doing what I do now were the lessons I learned during my service. We valued the importance of legal readiness for our Sailors and Marines and their families. Even in a peacetime setting the Navy and Marine Corps operates in an environment with dangerous machinery and servicemembers often work in hazardous conditions. There are training accidents.  Pilots and Naval aviators flying off aircraft carrier or smaller ships always have an element of risk even in routine flight. Just because something is called  a training mission does not mean there is no risk of loss or accidents. And, of course, if we get into a wartime situation there is a far greater risk of injury or death.

So we prepared our Sailors and Marines before they went off to their ship or unit. We had even our youngest Sailors getting Powers of Attorney, Healthcare Directives, and Wills. We’d get asked questions about why they had to do this since they really didn’t own much and were not wealthy by any stretch of the imagination. And we would tell them the following in one form or another. “This is not about you. This is about your family. This is a gift you can give your loved ones, your spouse, your children, your parents, and/or your siblings to make it easier for them just in case something happens to you. Because we know that as an 18, 19, 20 year-old Sailor or Marine, you’re indestructible. Nothing bad can happen to you. But the reality is you just never know. Something could happen and if it does, we’ve now helped your family at a very difficult time in their lives because they could focus on what’s important and not on the other things which become a senseless distraction.” And they got it.

This same idea—of being prepared as a gift to our loved ones–applies today to all of us. If we have our legal readiness plan in place and we go to work and tragedy occurs, our families will still have a hard time dealing with our injury or death, but at least they have the essential documents and other things in place to take care of what will be needed at that most difficult of times.

So that that’s the point of this article. It is not about senseless tragedy. It’s not about gun control. It’s not anything directly related to those sad and all too frequent occurrences. It is about what we can do to help with the aftermath. And one of the best things we can do is prepare to make things that much easier for our loved ones at what will undoubtedly be one of the most difficult times in their lives.

As I said, the Virginia Beach tragedy was personal to me, as were so many other horrible events. My family was fortunate. Others were not. A lasting gift we can all give to our families is the peace of mind in knowing that you have things in place for the just in case.

Our informational website at www.MyPeaceOfMindPlan.com provides a no obligation self-assessment of your own legal and financial readiness. We encourage you to visit and learn.

Planning for Your Pet’s Future After You’re Gone

They often sleep in our beds, go for long walks with us, and show us affection after a long, hard day. They may be our pets, but it’s no surprise that today many people consider their pets to be members of the family and treat them accordingly. In our case, my dog Lucy comes to the Reilly Law, PLC office most days and has her own dog bed and routine for her “work day.”

From a legal standpoint our pets are considered to be tangible property in the same way as our car or furniture. Those of us with cats know that our cats would strenuously disagree with this definition–they are not “property” nor are they really “owned” by their humans. Speaking perhaps just for myself here, I get the sense that my cats look at us as staff waiting on them and any legal concepts of ownership are mere trifles. Nevertheless, we should still be planning for their care if we are unable to take care of them.

Although many courts are now looking at pet custody in cases of divorce, their future upon your death remains up to the court – unless you properly plan ahead. In much the same way that parents designate guardians for their children should something happen to them, you should designate a guardian or caretaker for your pet. In order to ensure that your pets are accounted for the way that you’d like if you suffer a disabling illness or injury or after your death, there are two main things that you must do.

Choose a Caretaker

First you must establish who will care for your pets if something happens to you. This may be a direct relative like a spouse or child, or may also be another relative or a friend. Speak with them to ensure that they are on board to assume responsibility. If there is no one in your life whom you feel is the right person for the job, you may want to consider assigning an appropriate charity or humane society. If you wish to have a charity care for your pet post-mortem, it is often a good idea to make a donation to help the charity with care-related expenses.

Put Your Wishes in Writing

The second important part of estate planning for your pet is ensuring that you put your wishes in writing. There are several ways that you are able to do so:

Power of Attorney

You can include direction in a Durable General Financial Power of Attorney (DGPOA) about the temporary or long-term care of your pets. This can include guidance to your Agent on who you want to care for the pets, how they should be compensated, and any special provisions that you have in mind (though often those should be left in a letter or memorandum discussed below). The DGPOA provides your designated Agent with the legal authority to act and the ability to use your funds for the care of your pets. If you are able to resume caring for your pets you can easily do so without any legal formalities.

Will or Trust

To protect the interests of your pets after your death you can choose to put your wishes in your Will or Revocable Living Trust, which can be as easy as a simple statement that you wish to leave your pet(s), who you will identify, to some designated person or persons or charity. You may also wish to leave some money to your designated caretaker (identified by name) for the care of the pets using a Pet Stipend. This will also provide your Executor or Personal Representative some dedicated funds to provide temporary care for your pets until their new forever home can be found. The remaining Stipend funds will then be provided to the new caretakers to help defray their expenses.

Letter/Memorandum

You may instead choose to write a letter or memorandum if you are in a bind for time but need to get something down. This is considered as separate from any Will or Trust you have and its validity will be determined by the specific circumstances. This is also a good place to list any particular care issues such as food preferences, medication, veterinarian choice, etc. All of this will help your Agent or Executor provide the best possible care and outcome for your beloved companion animals.

Pet Trust

The third and final option is to create a Pet Trust, which is a legal document that sets aside an amount of money for the care of your pet after you’ve passed. With a Pet Trust you are able to identify the pet and the caregiver, set aside money, and choose the type of care that your pet will receive.

The Trustee is legally responsible for ensuring that the caretaker is using the money as stated in the Trust. Since there may be a remainder of funds after your pet has passed, you must name a remainder beneficiary. Often a Pet Trust is used for expensive or long living companion animals such as horses, birds, and tortoises.

Reilly Law Can Help

To ensure that your pet is well cared for in the event that something happens to you, it is important to decide which plan you wish to implement. Reilly Law PLC can help you to decide which option is right for you. To learn more or to schedule a free consultation, visit us online or call us at 703-579-1936 today!