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Alexandria, VA Estate Planning Blog

Thursday, November 12, 2009

What's the issue with "issue" anyway?

The Virginia Supreme Court has determined that the term “issue” has a different meaning then similar terms, like “children”. Yet many people throw caution to the wind and rely on documents that use “issue”, “children”, “descendants”, “lineal descendants”, “heirs” and “heirs of the body”, either interchangeably or arbitrarily. All of the aforementioned words have specific meanings and, depending on the particular term used, the results can differ dramatically. 
 

Even less comforting, the date that the will or trust was executed has an effect on the meaning. A Virginia trust executed in 1976, with language devising property to the “issue” of a child, would likely have a different meaning if the trust were executed in 1980. Why? Because particular terms, like “issue”, have a common law meaning and sometimes state legislatures decide to abrogate that meaning. However rules of constructions may require that the will or trust terms be construed according to the law existing at the time of execution, rather than the current meaning.  But, then again, if that same Virginia trust were construed according to another state’s laws, the analysis may be completely different.
 

What does it all mean? Have an estate planning attorney create your documents. Estate planning is an enormously huge and complicated legal sphere.  Consult a competent attorney. Estate planning is not, and I repeat emphatically, not, a form driven exercise. Contact us today and let a knowledgeable estate planning attorney go to work for you.
 

Authored by Luke Anthony Lenzi, Esquire         
 


Wednesday, November 11, 2009

Avoiding Unintentional Disinheritance

Blended Families (a child or children from a prior marriage/ relationship)

A blended family is a family where one or more spouses, life partners, or significant others (hereinafter spouses) have a child or children from a previous relationship. Estate planning for a blended family can become very complex. Generally each spouse desires to provide for the surviving spouse upon their own death. However they also generally desire that their own children do not become disinherited.
That can be the tricky part. How do you provide for the surviving spouse and also ensure that your children do not become disinherited?

A child may be disinherited in a number of ways, including but not limited to the following:

• Intentionally (e.g., Surviving spouse creates a new will or trust and expressly disinherits them)
• Accidentally (e.g., Surviving spouse’s will or trust is declared invalid, or lost, and the state statute disinherits them. Most intestacy statutes exclude non-biological non-adopted children. Adopted children may be excluded in common law jurisdictions)
• Remarriage and Divorce (e.g., Surviving spouse remarries, then subsequently divorces, and the new spouse becomes entitled to your child’s inheritance via the equitable distribution of property during a divorce proceeding)
• Remarriage and Death (e.g., Surviving spouse remarries, then dies. Despite what is written in the will, trust, or contract, the new spouse may become entitled to your child’s inheritance via the elective share statute. The elective share refers to the right of a disinherited spouse to receive a portion of a deceased spouse’s estate.)
• Fraud (e.g., Surviving spouse’s mental faculty diminishes and your child’s inheritance is swindled by unscrupulous predatory persons.)
• Lawsuit (e.g., Surviving spouse gets sued and must use your child’s inheritance to pay the plaintiff and his attorney.)
• Government Seizure (e.g., Surviving spouse needs governmental benefits, such as Medicaid, and must spend down your children’s inheritance before receiving benefits.)

With proper planning, an estate planning attorney can work with blended families to develop a plan that provides for the surviving spouse and protects the deceased spouse’s children. Contact us today and let a knowledgeable estate planning professional go to work for you.
 

Authored by Luke Anthony Lenzi, Esquire


Thursday, October 15, 2009

A Message to Parents with a Disabled Child

Your disabled child can be disqualified from governmental programs and required to exhaust (or spend down) his or her inheritance if you fail to properly plan. Parents of disabled persons have many significant parental responsibilities and proper estate planning is especially important.

Government programs provide basic assistance. Unfortunately these programs can have their budgets cut, benefits reduced, qualifications tightened, or they can be eliminated entirely. Supplemental Security Income (SSI) and Medicaid are two of the more well known and important programs. But disabled persons deserve more care than these programs provide. They deserve companionship, recreation, transportation, proper dental care, and much more.

Many parents erroneously believe that they must disinherit their disabled child. Special trusts can keep your child eligible and allow him or her to enjoy his or her inheritance. You can use a Supplemental Needs Trust to provide for your disabled child’s supplemental needs (the needs not provided by government programs) without making the child ineligible.

The cost of providing assistance to disabled individuals can be astronomical. Very few people have the money to provide their child with a lifetime of care. A Supplemental Needs Trust is a fantastic estate planning tool that allows the child to benefit from both government programs and their inheritance. Estate planning professionals can create a special needs trust tailored to your child's needs, your estate's value, and the dispositional scheme you desire. Contact us today and let a knowledgeable professional go to work for you.

 

Authored by Luke Anthony Lenzi, Esq.

 


Wednesday, October 14, 2009

What Every Parent of a Minor Needs to Know

If your minor child receives his or her inheritance outright then it's likely to be squandered. Your child depends on you for his or her support. His or her needs will not end if you die. They will become more dramatic. It’s critical that you plan for the possibility that you and your spouse may die before your child becomes an adult.

Minors cannot manage their property under Virginia law. The court may appoint a guardian of the minor's estate (hereinafter referred to as a conservator or conservatorship) to manage the property. Unfortunately conservatorship is inflexible, cumbersome, and unnecessarily expensive.

Wasteful conservatorship proceedings are a drop in the bucket when compared to the losses that can result when the conservatorship ends. Very few adults can prudently manage their finances. A spendthrift child who has suffered the emotional, psychological, and educational consequences of losing both parents is particularly unsuited.

The additional responsibilities can negatively affect his or her academic career. It’s hard enough balancing a full semester's work load. It’s even more difficult when you have to manage real estate and investments, balance a check book, and ensure bills are paid on time.

A trust can provide for the child’s support, provide incentives for the child to pursue a higher education, protect the child from his or her own inexperience, and shield the inheritance from creditors, such as plaintiffs, divorcing spouses, and the government. Determine what your estate would be worth if you and your spouse died tomorrow (don’t forget to include the life insurance). Then ask yourself how different your life would have been if you had received that same amount when you reached 30 years of age. It’s worth taking the time to plan. Contact us today and let a knowledgeable estate planning professional go to work for you.

 

Authored by Luke Anthony Lenzi, Esq.


Tuesday, October 13, 2009

The Consequences of Failing to Plan for Incapacity: Medical and Burial Directives

If you fail to dictate your medical and burial desires then you may be saddling your family with an awful burden. Failing to plan is tantamount to kicking the can down the road and passing the baton of responsibility to your family. Imagine the stress and emotional burden your loved ones would face if they were asked to determine whether you would have wanted life prolonging procedures? Do you want them to make the decision without your input? A potentially life or death decision that may implicate deeply rooted religious beliefs.

Virginia Code § 54.1-2983.3 provides that the absence of an advanced medical directive by an adult patient shall not give rise to any presumption for treatment. Consequently there is no presumption of life or death. The decision whether you live or die could be in the hands of a stranger, an estranged family member, or a group of family members. Many people are shocked to learn that Virginia Code § 54.1-2986 provides that an appointed guardian, not your spouse or child, has first priority to make the decision.

Failing to plan can be the catalyst for the breakdown of the family unit. It doesn’t matter if your family has a close loving relationship or a more tumultuous one. Every family is susceptible. You cannot guarantee that your family will stay together after you are gone. However you can reduce the risk that your family will stop speaking to one another because of a dispute about what treatment you would have wanted.

The costs of inaction can be astronomical. Informal disputes over your medical treatment can easily escalate into formal litigation. The result can be high court costs, attorneys’ fees, and expert witness fees. Additionally your beneficiaries’ inheritance can be exhausted on doctor and hospital bills that you never wanted to incur.

Your failure to act now can have devastating consequences later. But there is a simple and inexpensive solution. A properly drafted advanced medical directive, living will, or healthcare power of attorney can be the solution. Caution! These documents impact life and death decisions and they should be explained and drafted by a professional.

Careful planning can reduce unnecessary burdens and wasteful costs. It's very important that you consult an estate planning attorney during the drafting process. Contact us today and let a knowledgeable estate planning professional go to work for you.

 

Authored by Luke Anthony Lenzi, Esq.

 


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