Alexandria, VA Estate Planning Blog

If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with reasonable certainty and is signed by the testator although it does not satisfy the requirements for a will. Bequests of a general or residuary nature, whether referring only to personal property or to the entire estate, are not specific bequests for the purpose of this section.

If a Last Will & Testament was not executed properly, it still may be deemed valid by the court. To be valid, the proponent of the Will needs to file a petition within 1 year of the decedent’s death and make all interested persons parties.

Note: There is a strict 1 year time limit from date of death so moving quickly is critical.  

Although a Last Will & Testament was not executed in accordance with § 64.2-403, the Will shall be treated as if it had been executed in compliance with § 64.2-403 if the proponent of the document or writing establishes by clear and convincing evidence that the decedent intended the document or writing to constitute 

(i) the decedent's will, 

a partial or complete revocation of the will, 
an addition to or an alteration of the will, or 
(iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will.

Generally, this remedy doesn’t excuse compliance with any requirement for the testator's signature, except in circumstances where two persons mistakenly sign each other's will, or a person signs the self-proving certificate to a will instead of signing the will itself.

Can an interested person witness a Will in Virginia. Generally, the answer is yes. If the person is otherwise a valid witness, and no other exceptions exist, then an interested person (i.e., a beneficiary) may witness a Last Will & Testament in Virginia. The Virginia code provide for Wills that no person is incompetent to testify for or against a will solely by reason of any interest he possesses in the will or the estate of the testator.

A Last Will & Testament duly executed (properly signed, notarized, and valid) in another jurisdiction is generally otherwise valid in Virginia assuming it was executed in compliance with the law of that other jurisdiction. When determining weather the Will was executed properly, the determination is made as to the law then existing at the time of that person’s death (as opposed to the time the Last Will & Testament was executed) 

Can an interested person witness a Will in Virginia. Generally, the answer is yes. If the person is otherwise a valid witness, and no other exceptions exist, then an interested person (i.e., a beneficiary) may witness a Last Will & Testament in Virginia. The Virginia code provide for Wills that no person is incompetent to testify for or against a will solely by reason of any interest he possesses in the will or the estate of the testator.

In Virginia married persons have certain rights to the property of a deceased spouse. Even if the spouse was disinherited by a Will, Trust or gifts during lifetime, the spouse may be entitled to numerous spousal inheritance rights. Such rights include an (i) elective share, (ii) possession of the family residence, (iii) family allowance, (iv) exempt property allowance, and (v) homestead allowance. The following discussion concerns the aforementioned text discussed the forgoing spousal rights.  

Estate planning is a dynamic process. Each person has their own circumstances that make the outline and structure of estate planning unique to them. 

For parents with minor children, the focal point of estate planning generally is preparation for the contingency of simultaneous death or both parents dying while the children are young. The estate planning focus is the care and preservation of their children during the stages of life from infancy to post college adulthood.

Pre-Nuptial or Post-Nuptial Agreements are really important Estate Planning Tools for many people. Unfortunately, because Nuptial agreements are frequently and unfairly viewed negatively, and with more than a hint of skepticism, they are rarely utilized in the Estate Planning context. Notwithstanding, Nuptial agreements become more frequent when the parties are older and otherwise previously married. 

Some of the most important reasons to speak with an estate planning attorney concerns divorce. Divorcees have complicated family and asset protection issues that many families don't have. The following are two common issues involving estate planning for Divorcees or Divorced Couples.

Issue #1: Divorcee wants to leave their assets to their minor children while insuring that the other parent doesn't control or receive any assets.  

Common Estate Planning Solution: A living trust for minors designed to insure that the mother cannot serve as Trustee or alter the Trust as Guardian of the estate of the minor. 

Issue #2: Divorcee may be required by a separation or property settlement agreement to provide for the other Divorcee in some capacity.

Common Estate Planning Solution: Incorporation by Reference of the relevant separation or property settlement agreements terms in the estate planning trust documents. Its important to consider the implications of the surviving spouse's elective share and other inheritance rights when creating the plan. 

Estate Planning for Divorcees or Divorced Couples is very important. Frequently Trusts (living trusts as opposed to testamentary trusts) are used to create the estate plan. In the end, the client should feel that their estate planning concerns have been satisfied and their asset protection related goals achieved. If you have any questions, please feel welcome to contact the office and we can discuss any Divorce related estate planning issues with you.

Sadly, many clients walk into an estate planning attorney's office and are never asked about the clients' outlook for the future. What world do they expect to hand down to their children? What opportunities will their children have? What opportunities will not otherwise be available? Will they live in a free society?  

The reality is that many people, myself included, believe that future will be characterized by severe and ever increasing economic strife, government regulation, corruption, tyranny and societal decay. 

These particular clients' heartfelt and valid concerns shouldn't just be taken into consideration, they should be the foundation for which their plans are built. 

Below I have listed some provisions that could be implemented in almost any Trust plan

Estate Planning Trust Provisions for the Economic Collapse

1. provisions requiring the Trustee to have a certain some of non-perishable food and salt on hand

2. provisions designed to better insulate the Trust assets from rising interest rates and a Treasury Bond Bubble Implosion 

3.  provisions requiring the trustee to purchase necessaries in case of an economic collapse

4. provisions requiring the trustee to educate and instruct the beneficiaries on independence, self reliance and preparedness (maybe even requiring the beneficiary to obtain a classical education that includes learning history, chemistry, biology, anthropology, mythology, philosophy, legal jurisprudence, constitutional law and how to reason on an advanced level) 

5. provisions requiring the beneficiary to learn how to shoot, fish, hunt, farm, or prepare their own food. 

6. provisions for home schooling children

7. distribution provisions deigned to promote and influence positive conduct

8.  distribution provisions designed to inhibit negative conduct 

Ultimately, unless it is illegal or against public policy, clients can have almost any provisions inserted into their trust plan. They can tweak it anyway they like. That begs the question, than why are clients sold cookie-cutter one size fits all documents? 

House Passes H.R. 8 With a Vote of 257-167; Modifies Estate Tax, Generation Skipping Tax & Gift Tax (1/2/2012)

I. Makes the 2012 Estate, Gift & GSST Law Permanent (except as amended)

H.R. 8, after being signed by the President, will make the 2012 estate tax law permanent (including the existing 5 million credit that is indexed for inflation) by repealing the sunset provisions of the 2001 and 2010 Tax Acts.

Under H.R.  8, section 101(a), except as amended, Congress made permanent the sunset tax laws in the Tax Relief Reconciliation Act of 2001 and the Tax Relief, Unemployment Insurance Reauthorization and Job Creation Act of 2010.

II. Increases the Tax rate on Taxable Estates

The act also modifies the Tax Rates on Taxable Estates, found in 26 USC 2001, as follows:

For decedent's dying after 12/31/2012, the maximum estate tax, gift tax, & generation skipping tax rate will be 40%. The rate progressively increases as follows: 

"Over $500,000 but not over $750,000 . . . . . $155,800, plus 37 percent of the excess of such amount over $500,000.

Over $750,000 but not over $1,000,000 . . . . $248,300, plus 39 percent of the excess of such amount over $750,000.

Over $1,000,000 . . . . $345,800, plus 40 percent of the excess of such amount over $1,000,000.’’ 

Under H.R.  8, section 101(c), as identified above, Congress modified the table contained in subsection (c) of section 2001, as amended by section 302(a)(2) of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010.

III. What's Next

The bill, having been passed by the house and senate, goes to the President for signature. 

The text of H.R. 8, as published by House,gov on 1/2/2012, can be viewed by clicking here.