The Will: An Estate Planning Minimum  

Do I Need a Will?

A will is more than a formal written legal document setting forth how you would like your estate handled at death. In your will, you can also specify guardians to take care of your minor children, establish trusts for your children's or grandchildren's benefit, and reduce or eliminate some taxes.

Your estate includes all the property that you own at the time of your death. Through your will you can give away most property you own at the time of your death. There could be certain assets that you own that may pass outside of your will, by way of a beneficiary designation, such as your retirement plans, life insurance, bank accounts and trust assets, or other property subject to a contract. You may also own property that will automatically pass to another individual in some other way regardless of your will. It is important to understand your arrangements and to know how your property will transfer at your death. An estate planner who is a licensed attorney at law can help you identify your situation and then can help you plan to achieve your intentions by drafting the proper legal documents you need.

Whether you are married, single, have minor children or own even a nominal amount of personal assets or property, you should have a will. In fact, every eligible adult should have a will or other means to control the disposition of his or her assets. Even people that have living trusts should also have a will because, without a will, any property not held in the trust will pass according to state law, not necessarily in accordance with a person's wishes.

Your will should be reviewed periodically by a lawyer including whenever there is a significant change in your financial or family situation. Finally, even if most of the property held by you and your spouse is held "with the right of survivorship," a will can address the possibility of simultaneous deaths, or the distribution of the joint estate upon the death of the survivor.

Will Requirements

For a will to be valid it must be prepared, witnessed and signed according to specific procedures set forth in state law. For example, under certain circumstances, a court may find that a will is invalid because it was not prepared or signed properly, thereby causing assets to pass according to the state's intestate laws, regardless of the deceased person's obvious intentions. In other words, the state would decide how the property would be distributed, possibly even to unintended heirs, and would make no special provisions for personal property such as jewelry or family heirlooms. Moreover, when a person dies without a will, the state will distribute his or her property according to a preset formula, excluding friends, unmarried partners, charities, and distant relatives.

Your Children

If you have children, your greatest concern may not be who gets your assets, but rather, who will take care of your children. The courts are given broad discretion to determine who will take care of minor children if both parents die or if the surviving parent is unavailable. Even though a court has the ultimate authority to appoint a guardian, a will is the best way to tell the court who you want to raise your children. Further, a will (and/or a trust) should set forth what assets your children will receive, how and when the assets will be distributed, and who will manage the assets until such time as your children are able to do so themselves.

Fortunately, a will affords you many options to control the disposition of assets to your children if you should meet with an untimely death. Through a will, you can leave instructions on how the property will be held and who will act as the guardian, trustee or custodian of that property. By establishing a trust for your children or grandchildren either inside or outside of your will, you can even condition when, how, and if they will receive benefits.

Powers of Attorney and "Living Wills"

While a last will and testament provides for the management and ultimate distribution of your property after death, a will (as well as the powers and authorities of your executor) does not become legally effective until your death. Thus, a will does not address the potential need for property management during one's lifetime in the event of either physical or mental incapacity. Thus, to make even the most simple estate plan complete, one should always discuss the uses and types of powers of attorney and if appropriate a living trust with a lawyer.

While many of us would consider the prospects of being kept alive by artificial means following an accident or serious illness most disturbing, most are not aware of laws that grant each individual the right to die naturally. Indeed, you can sign a written declaration expressing your desire that your life not be artificially prolonged in the event of a terminal condition from which there is no hope of recovery. A lawyer should be consulted for an adequate explanation of this law and to draft the appropriate documents.

Estate Planning, Wealth Accumulation, and Protection Telephone: (804) 935-8510 ● Secondary Telephone: (804) 364-5071 Fax: (804) 364-6387 ● E-Mail Us
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Virginia estate planning attorney Robin S. Gnatowsky, CFP,® is a CERTIFIED FINANCIAL PLANNER™ practitioner, a certified public accountant (CPA), and an attorney focusing on financial planning, tax planning and estate planning. Richmond ● Glen Allen ● Midlothian ● Virginia Beach ● Virginia ● Florida ● Maryland ● Washington, DC