FAQ: Estate Planning
Q. Why should I have a will and why do I need a lawyer to prepare my will?A will ensures that your property will go where you want it to go when you die. No matter how small your estate, it’s important to have a will.
A lawyer prepared will is less likely to be challenged by your heirs and others.
Sometimes people prepare their own, handwritten wills. A handwritten will, can be difficult to probate and can be weighted down in red tape. For example, it must be authenticated in order to prove that it is in the handwriting of the deceased person.
Q. If I don’t have a will, what happens to my property?If you don’t have a will, the law will dictate where your property will go. This is called Intestate Succession. Under Virginia Law, if you are survived by a spouse, all your property will go to your spouse unless you are survived by children from another marriage. If you are not survived by a spouse, your property goes equally to your surviving children.
Q. Is a will prepared in another state valid in Virginia?Generally, if the will was properly prepared in another state, it will be acceptable in Virginia. However, you want to ensure that the will has a ‘Self-Proving Affidavit’ so that witnesses are not needed to verify your signature. A ‘Self-Proving Affidavit’ is a notarized affidavit stating that the will was property executed.
Q. Can a Revocable Living Trust be used to avoid probate?One of the primary reasons to have a Revocable Living Trust is to avoid probate. However, in order for the trust to be effective, you must fund the trust with your property. The trust will designate who receives your this property when you die and that property will not go through probate.
Q. What does a Trustee do?The Trustee manages the assets in the trust and distributes income or assets to the beneficiaries according to the instructions in the trust. The Trustee is responsible for complying with the Prudent Investor Act which requires the trustee to invest trust assets so that they are preserved but also so that they may grow in value for the benefit of the beneficiaries.