A will is a legal instrument signed by a person, and generally witnessed by two unrelated people, which provides for the distribution of that persons assets (estate) upon his/her death. The will can also make provision for issues that arise upon death, such as cremation, burial site and the guardianship of minor children, which, without a will, may be decided at the discretion of family members. A person who dies without a will (intestate), will have his/her assets distributed in accordance with State law. Therefore, if there are arrangements that a person wants to occur upon his/her death that are not covered by the law or the State law does not distribute the decedent’s assets in the way that person would like them distributed, the preparation of a will is imperative.
When a Client comes to Anderson & Quinn for the preparation of a will, we encourage the Client to consider powers of attorney. A durable power of attorney authorizes a trusted person, often a spouse or child, to act on the Client’s behalf during times that the Client is incapable of acting on his/her own. Similarly, a Health Care Directive, authorizes a trusted person to make health care decisions on behalf of the Client at a time when the Client is unable to make these decisions for themselves. A Client can also include in this document both the identity of the person to be appointed guardian of the client should that become necessary and directives that dictate the course of action to be taken in the event that the Client has a terminal illness. Without these documents some decisions and actions cannot be made without the involvement of the Court. This is both time consuming and expensive and the ultimate outcome may not be what the Client had intended.
Other Methods of Transferring Assets
Generally, upon death, a person’s assets are distributed in accordance with a will or the intestate laws of the State. The process by which this is done is called probate which is discussed below. Probate can be expensive and time consuming. Therefore over the years, some States have passed laws which allow a person to transfer assets upon death without going through probate. Beneficiary designations, often associated with life insurance policies and retirement accounts, allow a person to complete a form identifying those beneficiaries who are to receive the asset upon the person’s death. Where beneficiary designations are not available, some accounts, such as bank accounts will allow the person to place a TOD (transfer on death) or POD (pass on death) designation on the account. This designation identifies the persons to whom the account is to be transferred upon death. In both instances, the assets need not be transferred through the probate process.
Some assets such as real property, cars, artwork, jewelry and the like, cannot be transferred through the referenced designations. However, they can be placed into what is commonly referred to as a living trust. A trust is a legal entity that holds title to property which is generally administered for the benefit of the Grantor. The Grantor is the person who transferred his/her property into the trust. The terms of the trust dictate how the trust is to be administered. Generally, however, the Grantor will use the assets in the trust as if he/she still owns them. Upon the death of the Grantor, the assets in the trust are distributed in accordance with the wishes of the Grantor, which wishes will be set forth in the trust document. In this way, upon the death of the Grantor, his/her assets are distributed without going through probate.
If a person’s assets have not been transferred through designations or trusts, then, upon his/her death, an estate must be opened and the assets must be distributed through probate. This will require the personal representative or executor appointed by the will (or as dictated by state law where there is no will) to file a petition with the court seeking authorization for the personal representatives to act on behalf of the decedent and wrap up his/her affairs. Probate is governed by numerous rules and statutes which contain several critical deadlines. Although the Court employees are helpful in answering questions, in most cases attempting to navigate this process without the assistance of someone familiar with it can cause harm to the estate and unnecessary delays.
Trust and Estate Litigation
In far too many instances, particularly when an elderly person is involved, someone convinces a person to change his/her will or trust documents to benefit the person urging the changes. Often the person making the changes is in no position to resist. Only after that person dies do the family members learn of the changes. Although there are methods to challenge the changes, the right to do so is often time sensitive. Therefore, a person confronted with this situation needs to contact an attorney as soon as possible to determine whether there is a valid reason to make such a challenge. Failure to adhere to the time limitations will eliminate any ability to challenge a new will or trust.
We are pleased to announce that, Robert Scanlon, Managing Member, and Gustavo Matheus, Member, are now admitted to practice law in the Commonwealth of Virginia and are members of the Virginia State Bar.