1. Do I really need a will?

Generally, the answer is “yes,” although some people’s needs for a will are much more critical than other and each person’s circumstances should be reviewed by an estate planning attorney on an individual basis.

Between spouses, all property may be jointly owned or may pass to the surviving spouse under the terms of a written contract (such as a life insurance policy or retirement account). However, when spouses die simultaneously, or when a single person (who may be a widow or widower) dies, there may be a problem. Since no one knows who will die first, both partners need a will to determine who will ultimately get their estate.

It is possible that the intestate succession laws of Virginia may provide for the distribution of the estate in the same way that a person would in his will, but it is also possible that they may not. Without a will, a person can’t designate an administrator for his estate or a guardian for his minor children. He has no control over when his estate is distributed. A properly drafted will address these concerns and others. It also simplifies the administration of the estate. At SZE, we can assist you in the preparation of a will that will work best for you and your family.


2. Will the State get my assets if I don’t have a will?

The simple answer is, “Probably not, if you live in Virginia!” Virginia has laws governing intestate succession which describe, in detail, the parties to whom your estate will be distributed if you die without a will. Generally, these laws reflect what the majority of citizens would want to happen. Before your estate would go to the State, it would have to be determined that you had no living relatives (no matter how distantly related). If your spouse predeceased you and you had no living relatives, your estate would be distributed to the living relatives of your spouse. Only if no living relatives of either you or your spouse could be found would your estate “escheat” to Virginia.

This does not mean that you don’t need a will. It is possible that you would not like your estate distributed according to the intestate succession laws. You may also want to have more control over the distribution of your estate than the intestate laws provide. A will does much more than just control “who gets what”.

3. What happens to my estate if I die without a will?

If you don’t have a will, state law directs who will receive your property. Your property would be distributed to your “next-of-kin” in the following order (See the Code of Virginia §64,1-: )

(1) All to your surviving spouse, unless you are survived by children from a previous marriage. If so, then 1/3 to your surviving spouse, and 2/3 divided equally among all of your children.

 
(2) If you have no surviving spouse, all to your children, or their descendants.

(3) If you have no surviving spouse and no descendants, all to your parents, or their descendants (your brothers, sisters, nephews, nieces, etc.)

(4) If you have no surviving spouse, no descendants, no parents, no brothers, sisters, etc., then your estate is distributed 1/2 to your maternal grandparents and 1/2 to your paternal grandparents, or their descendants (your aunts, uncles, first cousins, etc.)

And so on, going to great-grandparents or their descendants, great-great grandparents and their descendants, etc. The intestate succession laws of Virginia allow your nearest blood relative to inherit, no matter how distantly related. If no living relatives can be found, your estate will go to the nearest kin of your pre-deceased spouse.

4. I’ve heard the term “probate” used. What is it?

Probate is the official proving of the will as the authentic and valid last will and testament of the deceased. The will should be probated in the county where the deceased resided. If the decedent died in a nursing home or similar institution, then that person’s residence is presumed to be where he or she resided prior to becoming a patient at such home. Usually the Clerk of the Circuit Court or a deputy clerk handles probate and a judge is not involved. It is recommended that the executor ( or the person seeking to be personal representative) take the initial steps for probate within 30 days of the decedent’s death.
At the time of filing the will, the probate tax must be paid. .

5. In a will, what is the difference between an executor, a trustee and a guardian?

The executor is the person who settles a decedent’s estate. She gathers the assets and distributes them according to the decedent’s will. Her job is usually done in about one year.

A trustee is the person who administers any trust set up in the will. Her job lasts until the trust terminates and her powers and duties are described in the will, or, by reference, in the Virginia statutes. She is a long term manager.

A guardian is the person you appoint to physically care for your minor children until they reach the age of eighteen. This is the person who will substitute for you as a parent.

These three jobs can be held by the same person or by different people. If you have questions about the qualifications you should look for when appointing an executor, a trustee or a guardian, discuss them with the attorney who prepares your will.

6. What property can I dispose of in my will?

Only property that is not automatically disposed of at your death by law or by contract. Property owned jointly, with survivorship, such as real estate or certain bank accounts, passes to the survivor by law, not by your will. Other assets, such as insurance, IRAs and other retirement funds have named beneficiaries. These assets also pass to the beneficiaries outside of your will. Your will controls your tangible personal property, the assets you own individually, and your share of assets held jointly with another person, without a survivorship provision. Your “probate estate” is only the property which passes under your will (or, if you have no will, the property that does not pass by law or by contract). This is the only property subject to the probate tax.

7. Is it OK to use a form will or a computer-generated will?

These work for some people, but if you want to use one, we suggest that you have an attorney review it to be sure that your own individual needs are met. Forms that work for some people do not work for all. Be especially leery of form wills if you are married but have children from a previous marriage. Also, wills should be formally executed according to state law to avoid having to be “proved” at probate. It is possible that a computer generated will may not be accepted for probate if it has not been executed properly.

8. Is joint ownership a good substitute for a will?

No. Even if everything is jointly owned between two people, with survivorship, only one of their testamentary needs is met--that is, passing everything to the survivor on the death of the first. Both parties still need wills to determine who will receive their property when the second person dies. It is not sufficient to assume that the survivor can write a will after the death of the first, because their deaths may be simultaneous or the survivor may be unable to write a will at that time for other reasons.

9. How can I change my will?

First and most important--don’t edit your original will by crossing through items or writing in revisions. These types of changes will be considered null and void at probate. A change to a will must be formally executed, witnessed and notarized, just like the original will.

You can have a formal “codicil” (an amendment changing only certain items) made to your existing will. In these days of computer processing, however, it is often just as easy to have a new will written.
Of course, if you want to void your entire will, you can just tear it up, burn it, or otherwise dispose of it.

10. I have a will, but I just got divorced. Do I need to make a new will?

Often, the answer is “no.” Virginia law states that when parties divorce, their wills are interpreted as if they had predeceased each other. In other words, if you are divorced and then die, but your ex-spouse is still alive, the provisions of your will would be interpreted as if she had died before you did. She would not be your executor, nor would she receive any of the stated inheritances. Your estate would go to the alternate beneficiaries you named, usually your children. If you remarry and wish to provide an inheritance for your new spouse, then you should make a new will. If you are in doubt as to the effect of your will after your divorce, see an attorney who concentrates his practice in estate planning.