Should You Change Your Out-of-State Will When Moving to Virginia (or DC or MD)?

When you move to Virginia (or Washington, DC, or Maryland) from another state there is certainly a lot to consider and a lot of decisions to make including where to live, what schools your children will attend (someday…) among other things.  But one thing you may not think about when you move to a new state is your estate plan. While your Will and other plan documents are still legally valid regardless of which state they are from (you may have heard the legal term “full faith and credit” before–that is what we are talking about here), you may be at a great disadvantage should you choose not to update it. By updating your Will and other plan documents you can make sure they are current and reflect your intentions, that they are up to date with any changes in the law, and that you are benefitting from any state laws that are in your best interest. Here are several factors you should keep in mind when changing your will.

Executor/Personal Representative 

You need to appoint a Personal Representative or Executor (same position, the name varies from state to state) of your Will to administer your Estate upon your death.  Choosing an Estate Executor or Personal Representative who lives within close proximity to you can be beneficial for you both. If you name someone to this role who is not a state resident or not local, he or she will have to be willing to travel to Virginia when you become incapacitated or pass away and may have to appoint a local agent and most likely will need to buy a fiduciary bond in order to serve. 

Marital Property Ownership 

What makes certain property marital and other property separate is dependent upon state law. Some states are equitable distribution states while others are community property states. Virginia is an equitable distribution state, so if you move from a state that follows the law of community property, what is considered as belonging to you both will be different. 

Taxes 

When it comes to state inheritance taxes and estate taxes, these will change from state to state. Virginia doe not have a state estate tax nor an inheritance tax, but Maryland has both taxes, and DC has its own estate tax, so tax planning can be a critically important aspect of your plan.

Probate 

Since probate law differs from one state to another, although your Will is still valid without updating it, the laws of probate may change and your beneficiaries will be required to comply with Virginia (or other jurisdiction) laws. 

Other Plan Documents 

The living documents of your estate plan, or as we prefer to call it, your Peace of Mind Plan, are also given full faith and credit in the new state so don’t have to be changed just because you moved. But we do think that getting local documents for your Powers of Attorney and Advance Medical Directive/Living Will is always the best idea to prevent any issues with acceptance in case of an emergency. While legally valid, if someone has concerns about your document because “that’s not the way we do things around here,” it may create unnecessary issues at a critical time. Plus you can use the relocation as a prompt to update and refresh your living documents because fresher documents that have the latest changes in the law in them are better for you. 

Reilly Law PLC Helps Those in Virginia, DC, and Maryland Who Are in Need of a Comprehensive Estate Plan–or 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 and update a comprehensive Peace of Mind 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!

Avoid These 4 Mistakes When Creating a Special Needs Trust

When their child has a disability, parents want to provide them with the proper assets necessary to protect their future. A Special Needs Trust, often referred to as a Supplemental Needs Trust (SNTs), is a legal tool that allows an individual appointed by the family to be responsible for managing money and making decisions for their child should they be unable to do so. 

Additionally, a Special Needs Trust is intended to ensure that there are enough financial resources for the long-term care needs of the child. However, this must be done in such a way so as not to risk the child’s eligibility for governmental assistance. A Special Needs Trust is very important as governmental benefits such as Medicaid and Social Security will likely be unable to meet the financial needs of your child for the remainder of his or her life. 

In response to this potential shortage in finances many parents plan to leave their child with a large sum of money when they pass someday. However, this plan could backfire, as it could inadvertently make them ineligible for benefits that can truly help them. 

Again, this is why a Special Needs Trust can be extremely beneficial. Not only can you leave assets to your child but also you won’t undermine their eligibility for benefits. However, in order for this to work properly, you must ensure that the trust is set up correctly. 

When you create a Special Needs Trust it is important that you avoid making certain mistakes, which could negatively impact your child. Here are three mistakes to avoid. 

1. Procrastinating

When your child with special needs is young, you may think that you have plenty of time to plan for their future. However, while that may be true, it may also prove false. Unfortunately, we never know when we will become incapacitated or pass away. Additionally, by setting up the trust while your child is still young, you can ensure that others who choose to make contributions to him or her over the years will do so in a manner that does not interfere with their right to governmental benefits. 

2. Trying to simply DIY 

While Special Needs Trusts can be extremely beneficial, this is only the case if they are set up in the proper manner. This is why an attorney who specializes in this area of law should establish Special Needs Trusts. Since the law varies state-to-state, using the Internet to understand the related rules can be detrimental. These documents are often quite complex so it’s better to get them right the first time rather than spend unnecessary time and money over time or to risk them being ineffective. 

3. Not speaking with Trustees on duties and expectations

It’s a lot of responsibility for anyone you choose to be Trustee of your child’s Special Needs Trust. That’s why before you make that decision you should speak with that person about your expectations when you are no longer able to manage the trust funds. You may even want to bring the person you are thinking of to meet with your special needs/estate-planning attorney so that he or she can better understand the associated responsibilities. One of the major issues with a family member Trustee for an SNT is alluded to above. The family member may be very well-intentioned but accidentally or otherwise create a problem with government benefits in making a distribution to the beneficiary that runs afoul of the law or regulations then in effect. For that reason, or just to have a long-term solution you may also want to consider using a professional Trustee for the SNT. One option in that regard is to use a Pooled Special Needs Trust operated by an organization that specializes in this type of Trust. We work with several such organizations and our clients who use them are very happy that they did.

4. Failing to Update the Trust as Needed

While Special Needs Trusts are designed to help fit the specific needs of a child with a disability, sometimes those needs can change over time. That’s why it’s also really important that you look over and update the trust at least every few years in order to make sure that it is still accurate and applies correctly to your child at this point in his or her life. 

Although we wish we could, we can’t always be around for our children. A Special Needs Trust is designed to provide support and protection for a child with special needs. By working with a knowledgeable and experienced estate planning attorney you can avoid making the above mistakes and take comfort that your trust will be properly established to secure your child with a safe future. 

Reilly Law PLC Helps Those in Virginia Who Are in Need of a Special Needs Trust

When it comes to preparing legal documents for individuals with special needs, the attorneys at Reilly Law understand the importance of protecting your wishes and affording you peace of mind. We will help you to create a Special Needs Trust as part of your 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!

What Is a Child Protection Plan?

As a parent, the most important job that you have is to protect your child(ren). While you may have everything in place to protect your children while you are with them, what transpires in the event that something was to happen to you and your spouse? Although it’s not necessarily comfortable to think about, it can be extremely important. This is where a Child Protection Plan comes into play. 

Components of a Child Protection Plan

A Child Protection Plan is a comprehensive legal document that is executed by parents of minor children in order to ensure that they are taken care of in the manner that you want by the people you desire. 

The Plan includes:

  • An Appointment of Temporary Guardian for someone you choose to take immediate custody of your kids; 
  • A Parental Consent for Medical Treatment form; and 
  • A Medical Information form containing information on your child’s medical allergies and conditions, pediatrician information, health insurance information, immunization record, and medication list. 

Additionally, the Child Protection Plan includes a wallet card, which is registered with a national database that maintains all of this information for each child within it. 

Just because you have a Child Protection Plan doesn’t necessarily mean that it will ever even need to be used. But it is far better to plan for the worst than to fail to prepare. 

Isn’t a Will Enough?

You may be under the impression that having a Last Will and Testament is sufficient for protecting your children in such situations, but this is not necessarily the case. Since your Will may not be immediately located it could take a bit of time before they end up in the right hands as you had requested. Additionally, even after your Will is located, the guardians that you have listed in it are only nominations that still require legal court appointment, and it only works after you have passed away – not if you have become incapacitated.

All Wills must also pass through the Probate process, which can take months – especially if its contents are contested by anyone. So happens to your children in the meantime? If your child requires any medical treatment it is usually Child Protective Services’ network of Foster Care volunteers that will be responsible. 

Still Unsure? Ask Yourself These Questions

If you are still unsure as to whether or not a Child Protection Plan makes sense for you, try asking yourself the following questions:

  • Do you have a clear plan in place should you or your spouse suddenly become incapacitated or pass away?
  • Have you named an emergency guardian as well as a long-term guardian for your children in a legally sufficient document that would hold up in court?
  • If you do not have a legal document that formally names your child(ren)’s guardians, who would receive custody of them if something were to happen? Are you okay with leaving that decision to a judge to make?
  • If you have selected guardians, are they aware of this and have they accepted the nomination? Would they know what to do if you suddenly became incapacitated or passed away?
  • Do you feel comfortable that your selected guardians understand the belief system and values you wish to pass down to your children?

Ultimately, a Child Protection Plan helps to give you peace of mind that the person of your choosing (rather than a government-appointed stranger) will be authorized to immediately take in, care for, and comfort your children in the event that something should happen to you and your spouse; not Child Protective Services or Foster Care.

Reilly Law PLC Helps Those in Virginia Who Are in Need of Estate Planning
Documents

At Reilly Law PLC, we understand the importance of protecting your wishes and affording you peace of mind. We will help you to create a Child Protection Plan and 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!

Should You Have a Living Will?

Estate planning often conjures up the image of those towards the peak of their lives – not those who are young working professionals. It can be extremely difficult to think of us as mortal beings that will likely get older and face more medical challenges. However, it is important to keep in mind that it is better to be proactive than reactive when it comes to planning ahead for your future health care. It is better to come to these decisions before we need them. 

What Is a Living Will?

A will itself is a legal document that is used to carry out your wishes and to distribute assets to your loved ones after you have passed. Alternatively, a living will is a legal document that provides for what you wish to happen regarding your medical treatment in the event that you are unable to provide informed consent. 

Sometimes situations occur in which individuals are severely injured or gravely ill and are in need of medical treatment but cannot legally make any decisions for themselves. A living will can serve as an advance directive, making those decisions ahead of time for yourself so that your loved ones won’t need to. 

For instance, if you are involved in a car accident and experience brain damage, do you want your life to be sustained by machines? If your heart stops after a seizure, do you want to be resuscitated? 

You cannot make such decisions in the moment, which is where having a living will can come in handy. However, for a living will to be effective, it must be signed in front of another person, a witness. 

Taking the Pressure Off

Individuals without a living will who find themselves in a position in which they cannot make legal decisions must rely upon their loved ones to do so on their behalf. This can prove extremely trying when they themselves are going through such an emotionally tumultuous time. By having these decisions made, it can take an immense amount of pressure off of them while still receiving the care that you would want. 

Although emergency medical professionals are required to stabilize a patient under the law when called to them, the courts must still honor living wills. However, a living will does not go into effect unless you are legally unable to make decisions for yourself. Therefore until it is legally triggered, a living will may remain private. 

Reilly Law PLC Helps Those in Virginia Who Are in Need of a Living Will

At Reilly Law PLC, we understand the importance of protecting your wishes and that, which should be yours. 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!

6 Things About Estate Planning Newlyweds Should Consider

The establishment of marriage is all about joining two lives. For many couples, this includes bank accounts, taxes, and homes. But one very important aspect that many newlyweds don’t even consider is the creation of an estate plan. 

While you may believe that estate plans are for those who are of older age, an estate plan is extremely important no matter one’s age, sex, or socioeconomic status. It is never too early to establish a comprehensive plan that can be built and rebuilt over time. This is because the true purpose of the estate plan is to honor and protect the interests of the estate owner – in this case, you and your new spouse. As your lives and your assets change over time so can your plan. 

Although an estate plan may seem overwhelming to think about, there are important aspects to think about that can help to reduce the anxiety often associated with its creation. Here are 6 things about estate planning that every newlywed couple should consider.

6 Estate Planning Tips Newlyweds Should Consider

1. Review Your Previous Estate Planning Documents

Prior to your marriage, you may have established a will or a trust. It is extremely important to determine if you wish to keep them as is or to change anything as part of your estate plan as a couple.

2. Change Your Last Name Anywhere it Matters

Often times, one individual in the couple will choose to take the other’s last name. If this is something that you have chosen to do, it is important that you also change your last name on all of your existing property titles, legal documentation, and accounts to ensure that no mistakes are made. 

3. Consider a Joint Bank Account

When a spouse passes away, it is an extremely emotionally taxing time. The last thing that you want is to have to deal with unnecessary financial matters. The establishment of a joint account can make matters easier. 

4. Purchase Life Insurance

After they pass, life insurance can prove very helpful for one’s family. It can provide them with the financial means to get through such a trying time. But it is key to note that life insurance isn’t just for those middle-aged and older. Since it is actually cheaper for those who are young and healthy, it is best to obtain it sooner to lock in a lower premium. 

5. Establish an Advance Directive

The act of marriage is one in which both parties are committed to in sickness and in health. It is during sickness that it greatly benefits both individuals to have an advance directive for health care. This enables your partner to have the legal power of attorney in order to make important medical decisions on your behalf in the event that you are unable to do so. 

6. Decipher Your Property

We all go into a marriage with our own property. Any property that was acquired prior to the marriage is separate property. That’s why it is important to decide which property you had before getting married that you wish to remain separate and which property you would like to join. 

Planning for the health and safety of your spouse – and your family – can make all the difference during some extremely trying times. 

Reilly Law PLC Helps Newlyweds in Virginia Who Are Interested in the Creation of an Estate Plan

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

Living Trusts: What to Know

In my conversations with clients I often find there is a lot of confusion about what a Living Trust is and how it can benefit someone. Part of my discussion of Living Trusts has to do with the fact that there are benefits to a client both during their life and after their death. This is contrasted with a Will that has no effect at all during a lifetime but has a key role after death to begin the probate process, which helps to confirm the legality of an estate and provides court-supervised transfer of assets to beneficiaries. Probate can be very expensive and can last for a long time. It is also a public process with estate documents filed with the court made available to anyone who wants to see them. Living Trusts are often implemented to avoid these pitfalls of probate as well as provide the lifetime benefits. 

Types of Trusts

There are two main different types of Trusts: Irrevocable and Revocable.  

  • Irrevocable Trusts – Irrevocable Trusts, like its name implies, are permanent, only allowing assets to leave the Trust if all those named in it give express permission, or if otherwise permitted under the Trust document or state law. You may be familiar with some types of these Trusts used for particular purposes such as Medicaid qualification, asset protection, or providing for someone with special needs. This type of Trust has its own tax identification number and must file its own tax returns. 
  • Revocable Living Trusts – Revocable Living Trusts, also like the name implies, allow you to maintain your control of the Trust. Revocable Trusts are private and do not get filed with probate court unless the Trust plan was not complete in that assets that needed to be put into the Trust. This type of Trust usually uses the Social Security Number of one of the Grantors who established the Trust for tax purposes and there is no additional tax liability for having this Trust.

For most of our clients a Revocable Living Trust is what we use for what we call our Peace of Mind Plan. This Trust is a legal document that permits them to hold their assets inside the Trust (we often call it the “Trust bucket” for help in visualization) and if they desire, and are legally able to do so, manage their Trusts for themselves and/or others while they are alive. Only after they die, or after the surviving spouse dies in a joint Trust, does the Trust become a Will substitute and hopefully avoids the probate process. Two key points of a Revocable Living Trust are that you 1) do not lose control of your assets by putting them into the Trust–they remain yours under the terms of the Trust; and 2) you can designate one or more people other than yourself, or a bank or other entity, as your Trustee to handle things for you. A Trustee other than you does not have any ownership rights over your assets, rather they must manage the Trust according to your instructions. After your death the Successor Trustee, who you have the ability to appoint, oversees the administration of the Trust to ensure that bills, expenses, and taxes are paid and that assets are correctly distributed. Remember–you can appoint someone to be a Trustee or you can decide to be a Trustee yourself and just have a backup or two. 

Reasons for a Living Trust

Living Trusts can help to avoid a Will contest since they go into effect once signed, while a Will only goes into effect after a person dies. 

A Living Trust can be of use to assign property to a minor. The trustee will hold the property in the Trust until the child is of age. For example, a grandparent can appoint their child as Trustee of a Trust that benefits the grandchildren which makes distributions according to the plan established by the grandparents that cannot be changed by the Trustee. 

Additionally, a Living Trust is very important should you ever become incapacitated. In such a situation you would not have to worry about having a conservatorship on your assets since you have already appointed a Trustee. 

Do I Need a Will Too?

When someone with a Revocable Living Trust dies the ideal outcome is that all assets that they owned at their death are either in their Trust, payable to their Trust, are jointly owned with someone, or have beneficiary designations that direct the outcome. If it all works as it should there is no need for a probate process. However, sometimes there is property not put into the Living Trust and does not have an alternate way of being distributed. While we consider this a plan failure, there is still a process to move the asset into the Trust. That is through the use of a special kind of Will often called a Pour-Over Will whose sole purpose is to be used in a relatively quick probate process to move an asset (or assets) from the deceased person’s Estate into their Trust. You might think of it as being poured from the Estate into the Trust which is why it has that name.

A Revocable Living Trust can be the foundation of a comprehensive estate plan, or Peace of Mind Plan, that addresses your concerns of incapacity and death and ensuring your property is properly managed and distributed. If you have concerns for some beneficiaries due to age or other circumstances the Trust can be an effective way of making your intentions known and able to be carried out. Other key parts of the Peace of Mind Plan are durable Powers of Attorney for financial matters and health care, and a Living Will or Advance Medical Directive that provides guidance to people your trust in the event that you should become incapacitated and cannot speak for yourself.  

Reilly Law PLC Helps Those in Who Are Interested in Revocable Living Trusts and Developing a Comprehensive Peace of Mind Plan

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 us today!

Health Care POAs and Advance Medical Directives in Virginia: What You Should Know

Sometimes it can be tough to think about finding yourself in a vulnerable position regarding your health and care. We want to be in control of our own health decisions. However, it happens to every one of us. Although we often associate health issues with age, they can occur at any time. Many of us know which decisions we would make regarding our healthcare, but should we become incapacitated, and therefore incapable of making those decisions, it is important to have the proper legal documents in place in order to ensure that your wishes are carried out. Additionally, by having these medical directives in place, you give your loved ones a tremendous gift as they will know that they are following your wishes and not having to guess what you wanted. This is true peace of mind at one of the most difficult times of a person’s life. I speak from experience here both personally and professionally.

In order to properly establish your wishes, you will want to create a Durable Power of Attorney for Health Care as well as a Living Will or Advance Medical Directive (AMD). The Durable Power of Attorney helps by naming an individual (or several individuals) who you trust to serve as your Agent when it comes to issues related to your healthcare should you become incapacitated by injury or illness. A Living Will/AMD helps to outline the medical treatment that you would like, or not, in an end of life medical situation. 

Durable Power of Attorney

The first part of setting up the Durable Power of Attorney for healthcare is to choose one or more trusted Agents. Under Virginia law, the Agent must be at least 18 years of age. Many people choose their spouse or partner, close friend, or a relative as their Agent. The individual whom you choose should be someone whom you can depend upon, who is trustworthy and organized. This individual should also be someone who can stand up to other family and friends who disagree with your requests and who can remain calm under pressure. You may choose someone who does not reside in Virginia, but he or she should be able to travel to the state should they need to. 

Living Will

In a Living Will you provide instructions to your healthcare Agent and any providers, such as your doctors and nurses, as to what type of treatments you want, or don’t want, at an appropriate time near the end of your life. A Living Will is not the same as a Do Not Resuscitate (DNR) order that must be signed by a doctor. But the Living Will can be invaluable in a hospital setting on determining what course of treatment is appropriate. You can decide in advance that you want palliative or hospice care and be kept medicated, hydrated, and comfortable. Or you can express your intentions about aggressive treatments to extend life as appropriate.  

If you have a Living Will or Advance Medical Directive you are able to have your intentions known and followed even if you are unable to communicate with your medical team at that time. One of my Navy commanding officer’s called me, his attorney, his “mouthpiece.” A Living Will/AMD allows you to appoint your own trusted “mouthpiece” to speak for you if you are unable to do so and provide them the guidance on what they should tell your medical team.  As mentioned above, I have had a lot of experience in both my attorney and son roles with end of life care and I truly appreciated the relief in having these legal documents in place.

As noted, a Living Will/AMD is not the same as a DNR order. For some clients a DNR signed by their doctor after appropriate counseling is a critical part of their healthcare planning. A DNR can be honored by first responders whereas a Living Will/AMD cannot be used to prevent on scene treatment. Those documents are only legally effective in a care facility.

Reilly Law PLC is Your Peace of Mind Planning Partner 

In the window of our office we have a sign with a picture of an ambulance outside an emergency room. The caption is “This is NOT the time to learn you are NOT legally ready!” The same goes for your loved ones. When you — and they– are in the throes of a tough medical situation, it is not the time to be making decisions or have them trying to determine what you would want. In fact, there are times when you will be incapacitated or unable to make decisions. That’s why it is so important to be proactive, rather than reactive. You can make the decisions that you know you want, leaving nothing undetermined. Consulting with an experienced and knowledgeable estate planning attorney can make all the difference. 

At Reilly Law PLC, Peace of Mind planning is all we do. We are compassionate to your needs and desires and will work to ensure that your wishes are clear and appropriately documented as you so choose. To learn more or to schedule a free consultation, contact us today!

What Are the Differences Between a Will and a Trust in VA?

Let’s face it, it is the rare person who likes to discuss end of life planning. But not talking about it does not change the reality that we are all mortal and our time will come. As wryly put in a Kenny Chesney song, “everyone wants to go to Heaven but no one wants to go now!” Part of any end of life planning is what happens to our money, property, and stuff. When it comes to the distribution of our assets, most of us have certain individuals in mind. If you know anything about estate planning, you have likely heard of a Will and a Trust; but how are they different and what can they do for you?

The biggest difference between a Will and a Trust is that a Will is a set of instructions about how your assets are distributed only after your death and in a legal proceeding called probate. A Trust allows you or someone whom you designate as a legal representative (your “Trustee) to use your wealth as instructed by you while you are still alive.  In other words, and simply put, a Trust is very much like a Will that begins while you are alive and after your death seamlessly becomes your Will substitute. 

Trusts

While there are many different types of Trusts and each one goes into effect as soon as they have been set up. Some Trusts need a separate Tax ID number and are treated similar to a business in that they have both expenses and income and have their own income tax returns. But most of the Trusts we use for estate planning purposes are known as Revocable Living Trusts. These Trusts typically use the Social Security number of one of the parties who established it (“Grantor(s)) and there is no separate tax return or tax treatment for a Living Trust while the Grantors are alive.

Other types of Trusts are known as Irrevocable Trusts. These are the Trusts that need their own tax ID number immediately. Once an Irrevocable trust is set up, you may not change the use of the assets listed therein. Alternately, you may make changes to a Revocable Living Trust at any time. Upon the death of both Grantors of a Revocable Living Trust that Trust becomes an Irrevocable Trust and cannot be changed and for the first time needs its own tax ID number and has its own tax filing requirements.

All Trusts have a Trustee; someone who is legally authorized to manage the assets in your Trust. You may name someone else as a Trustee for the life of the Trust, or you may name yourself as the Trustee while you are alive and name someone else as the Trustee upon your death or disability or to serve with you as a Co-Trustee. Trusts are also better for issuing your assets to family members in non-traditional families (e.g. an unmarried domestic partner).

Unfortunately, Revocable Living Trusts cannot help to protect your assets from creditors or from estate tax, although some tax planning can be done in certain cases. Although Virginia does not have its own estate tax, federal estate taxes still apply. But luckily, as a result of the Tax Cuts and Jobs Act, more than $11 million are exempt from the estate tax, so most people will not have to worry about it. 

Wills

Creating a Will-based plan is generally easier than setting up a Trust. However, as mentioned Wills must go through a legal process known as probate, where a court validate the Will and supervises the administration process. It can be both time-consuming and expensive. No one may receive any of your assets until your Will has gotten to a certain point in the probate process which may take several months. It is also important to note that Wills offer less privacy than Trusts, as many of the terms of your Will must be made public during the process. (Trusts are not subject to probate.) I have had a number of clients who just knew their nosy neighbor was going to be at the courthouse to find out what they had and who got what!

Reilly Law PLC Can Help

When deciding whether to set up a Trust or to write a Will in Virginia, it is always a safer option to consult with an attorney who understands all about Wills and Trusts and who can help you to decide which is best for your specific goals and circumstances. If you or a loved one is in need of a Will or Trust, Reilly Law PLC can help to make your wishes a reality. To learn more about Wills, Trusts, and estate planning (or as we prefer to call it Peace of Mind Planning), or to schedule a consultation, contact us today!

Can I Write My Own Valid Will? Yes, but….

While no one likes to think about their death (hopefully at some distant time) the uncertainty of life and death makes just in case planning critical for everyone. A Will is a great tool to use when preparing your estate and your assets for what will happen to them upon your death. Consulting with an experienced estate planning attorney can help you create a valid Will. But what happens if you want a Will but don’t have the time or money to seek out an attorney? Can you still protect and achieve your wishes?

A Valid Will According to Virginia State Law 

Under Virginia State law, you may create what is called a “holographic” Will. This is a Will that is completely handwritten and signed by the individual without the presence of any official witnesses. In other words, you can write down your wishes concerning your estate including who you want to receive which assets, and then sign it. Though they are very easy to create, as you might imagine there are many reasons why everyone doesn’t use a holographic Will. Note that using a typewriter or a computer to draft this kind of Will is not valid–a holographic Will in Virginia must be entirely handwritten by the testator and signed by him or her. If you use a software program or just type up a document you want to be your Will you need to use certain legal formalities to include having the signing be witnessed by two individuals not related to you or benefiting from the Will. I had a client come in with her own homemade Will all nicely typed up and she proudly told me she even had it notarized. Unfortunately I had to tell her the bad news that a Notary was not required  but witnesses were. Her document was not a valid Will in Virginia. The good news was we were able to correct that. Had she died with that “Will” in place it would not have been approved for probate by the court.

The Probate Process

In order for a Will to be used to honor your wishes after death, it generally must go through a legal process known as probate. The purpose of the probate process is to have a court supervise the timely and proper administration of the estate to include ensuring the decedent’s property is properly distributed to the right recipients, debts and taxes are paid, and the wishes of the decedent are carried out to the extent possible. The starting point to the probate process is for a court to determine the validity of the Will.

Wills that are drafted by attorneys are much more likely to pass through the process without much issue. On the other hand holographic Wills, by necessity, will require the probate court to conduct further investigation, which can delay the execution of your Will and cost those involved more money. 

Proving a Valid Will

Although the signing of the Will does not need to be witnessed, there must be at least two disinterested witnesses to prove that it is authentic. In other words, in addition to being signed by the individual creating the Will (the testator), two people must be able to confirm that it is in that person’s handwriting. Although not necessary, it is often wise to have at least two people witness the signing of the Will and have them sign the bottom of each page. 

For a Will to be valid, the individual creating it must understand what they are doing and the consequences that it implies. Unfortunately, without the assistance of an attorney who is assumed to have determined that the individual is of sound mind, those who are left out of the Will often tend to contest its validity, claiming that the individual was not of sound mind, or did not understand the consequences of the Will itself. 

Even if there is absolutely no legitimacy to these claims, it is still likely that the Will may end up in probate for a long time – possibly even years. If a holographic Will or other type of “do it yourself” Will is not accepted by the probate court the estate is considered to be intestate–as if the decedent died without a Will–and the Virginia laws related to who receives property control even if that conflicts with the intentions of the decedent in the invalid Will.

Reilly Law, PLC Can Help

Even though they can be legally sufficient, using a holographic Will is a risky way of planning for your estate. These types of do it yourself legal documents can create additional issues of validity for your loved ones, often causing them to wait longer periods of time and to pay more money to attorneys and the courts in the probate process. It is always a safer option to consult with an attorney who understands Wills and the probate system and knows what needs to be done. If you or a loved one is in need of a Will, Reilly Law, PLC can help. We offer an essential legal readiness package for young families and young at heart folks as well that will ensure you have a legally valid Will in place to make your wishes a reality. The package also includes valuable documents that offer a living benefit such as Durable Financial and Health Care Powers of Attorney, Living Wills/Advance Medical Directives, and Guardianship documents. To learn more about wills, estate planning, and the probate process, or to schedule a consultation, find us online or call us at 703-579-1936 today!