Most people are familiar with the term “last will and testament” – it is the document in which you decide how your assets will be distributed upon your death.

Wills can be used to transfer cash accounts as well as personal property such as family heirlooms, cars, and jewelry. In your will, you can even leave assets in trust for those with special needs who may have difficulty managing their own assets through a special needs trust.

If you have a simple asset portfolio, you may think that you don’t need a will – but did you know that if you don’t make an estate plan, the state will make one for you?

Who needs a will?

If you die without a will, the state in which you live has specific rules as to who will receive your assets. Usually, spouses, parents, and siblings are first in line to receive your assets, followed by nieces, nephews, and other more distant relatives.

Although many people would agree with how the state chooses to distribute their assets upon their death, others may want to leave assets to friends, family, and charities that the state would leave out of their plan.

Worst of all, if you die without any living relatives, your assets could even go to the state. Having a will in place allows you to decide exactly who will inherit your assets upon your death – and how much each of your loved ones will receive.

If you wish to make contributions to charities upon your death, a will allows you to leave some or all of your estate to charities. Without a will, there would be no way of outlining these wishes in a legally enforceable way.

What else can a will help me achieve?

However, a will can be used for much more than distribution of assets. If you have children, a will allows you to appoint guardians to care for them if you pass away before your children reach adulthood.

If children’s services or some other branch of the state is left in charge of deciding who will raise your children, they may end up in a less than ideal situation – and this is easily preventable.

In a will, you can outline details like who you would like to raise your children, how your assets should be managed in a way that is best for your kids, and how you would like your children to be raised. Without a will, the state will decide who raises your children.

Another good reason to have a will in place is that this document allows you to have control over who manages and distributes your assets upon your death.

In your will, you can name someone (called an “Executor”) who has the responsibility of negotiating with creditors, closing and managing your bank accounts, making distributions to beneficiaries, and handling the probate process.

Without naming an executor, your estate may end up being managed by someone who you would not have wanted to manage your affairs. Having a will allows you to have a greater deal of control over what happens to your assets after your death and how those assets are managed.

What is probate?

Probate is the process that your estate must go through if you die with or without a will in Virginia. Probate is a 12 to 16-month process during with your executor must inventory and account for the distribution of all of your assets upon your death.

Although this is often an expensive and stressful process, if you meet with an attorney and make sure your assets are organized and your affairs are in order, you can save your executor a great deal of time and money by making it easier for them to manage your estate after your death.

This process is required by law in all states, and sometimes requires the assistance of an attorney for more complicated estates.

If you establish a will, you are able to determine who handles the probate process before you. Because probate can be long and expensive, it is important that someone qualified to do the job is appointed as your executor.

Executors have what is called a fiduciary responsibility to manage your estate in the proper way. Although executors in Virginia are legally entitled to collect a fee for their services, they are not permitted to mismanage or misallocate the funds in your estate. It is important that you name an executor who is a trusted and responsible person who will take the job seriously.

In Virginia, if you fail to have a will in place, even a creditor of your estate could qualify as the administrator of your estate!

Storing Your Will

Probate courts usually require that your original will be presented and recorded before a court clerk in order for the probate process to begin. For that reason, we recommend keeping your estate planning documents in safe place, such as a safety deposit box or a fireproof safe.

If you update your estate plan and sign a new will, it is crucial that you destroy any previous wills you executed.

When more than one will exists, the court will accept the most recent will that was signed. However, if your most recent will is lost or misplaced and you kept an original old will, your estate may be probated using an outdated will that does not comply with your wishes.

Because family situations and personal preferences change often, it is important to review your plan at least every three years, or sooner than that if you experience changes in your family or financial situation that may make you want to make changes to your estate plan.

Completing an Estate Plan

At Alperin Law, completing an estate plan includes much more than simply singing a last will and testament.

We offer estate planning packages that include wills, healthcare directives, financial powers of attorney, and an organizational binder that allows you to record information about your financial accounts and family contact information for your executor.

Once you sign an estate plan with Alperin Law, we offer complimentary reviews of your estate plan every three years. This helps ensure that there have been no changes in the law, in your  family, or in your financial situation that would necessitate a change in your plan.

Do You Need Legal Help Regarding a Virginia Probate or Estate & Trust Issue To Protect Your Family's Assets?

If you need legal assistance regarding a family estate you need to speak with an experienced Virginia probate, estate and trust administration attorney as soon as possible. Contact us online or call our Virginia Beach office directly at 757.490.3500 to schedule your free consultation. We have offices throughout Virginia including Chesapeake, Newport News, Norfolk and Suffolk.

Scott Alperin
Experienced Estate Planning & Elder Law Attorney Serving Virginia Beach Area Clients Since 1994.
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