Dying intestate (without a will) requires that a court decide how, when and to whom your assets will be distributed. Life insurance and joint ownership of property, while valuable guards against problems for your family after your death, cannot replace a will.
Assets are distributed as follows in intestacy:
- All of your property passes to your spouse unless you have children from a former marriage.
- If your spouse fails to survive you, your entire estate will pass to your children (or to the descendants of any deceased children).
- If you are unmarried and have no children, Virginia law requires that your estate pass to your parents.
- In the absence of parents, your property would pass to your siblings (or descendants of deceased ones).
- Finally, if you have no siblings, nieces or nephews or other descendants of siblings, Virginia law provides for one-half of your estate to pass to your nearest maternal relatives and one-half of your estate to your closest paternal relatives, divided in shares that are specified by state law.
Creating a will puts the choices in your hands, not the court’s:
- You select who receives your assets and how and when they will be distributed, not the court.
- You elect who administers the distribution of your assets, not the court
- You minimize costs for your executor and your family.
- You, not a judge, will choose the guardian you desire for your children.
- You can make many details of administering your estate easier for your heirs and your executor
- You can decide which heirs need their property protected by a trustee or custodian, for how long, and you can decide who will be the trustee or custodian, and specify other details if necessary.
Comparing wills and trusts
A will provides only for the distribution of your wealth after death. It can direct the disposition of your estate and nothing more. A trust, on the other hand, is a means of long-term planning for your estate. With a trust, further flexibility is allowed in the distribution of your financial legacy. The Trustor (or the person creating the trust) selects a trustee, or administrator, for the corpus (principal) and the income of the trust. This trustee monitors the trust and distributes it to the beneficiaries. Trusts can be established in several different forms, including living trusts, irrevocable trusts, and other types. Some trusts are included in the will and only are created if an heir is young or disabled. Speaking with your lawyer can help you to determine which of these types is right for you and your family, or if a will itself is sufficient.
Things to consider in estate planning and the creation of a will:
Each state governs the division of property differently. Some states consider the property of married persons to be community property, while other states, including Virginia, do not. Other types of property ownership include joint tenancy, tenancy by the entireties, individual tenancy and common tenancy. These considerations of property ownership can change who the property will go to after its owner’s death. A property agreement between spouses is a declaration of the ownership of the couple’s assets that can be important to estate planning. Prenuptial agreements are also a type of property agreement.
·Prior claims to your inheritance from previous marriages
When entering into the creation of a will in your second marriage, the claims to your estate that would be made by your children from an earlier marriage must be considered. Special types of trusts can provide for both the beneficiaries from the first marriage and those from the current marriage. A Q-TIP, or a Qualified Terminable Interest Property, Trust is one of the ways that this distribution can be facilitated between the beneficiaries of both unions. This can be explained in further detail by your attorney.
·The age of your beneficiaries
If you have children or other beneficiaries younger than the age of 18, they should not simply inherit their shares of your assets. If they do, they will have to go through court Guardianship proceedings. Providing for their inheritances, then, requires special additions to the will that (A) appoint Guardians or Custodians or (B) set up trusts for the distribution of their shares through a Trustee appointed by you. An age of distribution will be chosen by you in the preparation of your will. It will determine when beneficiaries will be of age to come into their inheritance.
·Relationships between you and possible beneficiaries
Most modern families include relatives connected to the family in many different ways, sometimes by adoption, non-marital or pre-marital birth, or by non-traditional ways of marrying or having children. Even if you yourself do not have any such relationships, relatives yet unborn may do so before you die. In creating your will, you will need to decide how a family relationship will be defined. The “by-default” definitions under current law may be more traditional than you want; and on the other hand, by the time you die they might be looser than you want. In this, as in other areas, the lawyer helps you consider how to deal with situations that might arise, so that your will will be clear and consistent with your wishes no matter what happens.
·Choosing alternate executors and trustees
Typically, your spouse will be the executor of your will after your death. In writing your will, you will name a successor executor who will take your spouse’s role if required. If you create a trust, a trustee will also be named in your will. Alternate choices for both of these roles are necessary in the event that your first choices die first.
We have over 35 years of experience in drafting wills that focus on our clients’ individual needs.
In order to draft your will, it is important that our lawyers understand your specific situation and needs. Our attorneys will sit down with you and have detailed conversation to determine your needs. Prior to meeting with one of our lawyers, you should take an inventory of your assets, inventory your liabilities, write down potential beneficiaries, and write down what you would like your will to accomplish.
Additionally, the attorneys at Eric O. Moody & Associates can assist you in updating your will due to changes in your family structure or assets if your will has already been drafted.