Andrew Flusche, Fredericksburg Lawyer

When a loved one passes away, legal matters are the last thing you want to think about. But you may need to probate their will, so property can pass to the appropriate beneficiaries.

Probate in Virginia doesn’t have to be hard. In fact, if your loved one left behind an orderly will, probating the will is rather simple.

The easy way to probate a will in Virginia is with an ex parte proceeding. If the will is “self-proving,” you can simply present it to the appropriate court clerk for probate. A self-proving will contains an affidavit at the end that automatically testifies that the will was executed properly.

If the will isn’t self-proving, the will’s witnesses need to testify for the court that the will was properly executed.

Once you have taken care of this, the will is probated. For harmonious estates, this process speeds along the administration. You don’t even need the judge to handle this type of probate, just the clerk.

Importantly, remember that probating the will is not the entire estate administration process. Probating the will simply opens the estate for administration, at which point the executor can proceed to administer the estate.

If your estate plan isn’t orderly, you could be setting your heirs up for a messy fight. Don’t let your estate be fought over like these five famous cases.

Anna Nicole Smith

Anna Nicole Smith at the MTV Video Music Awards. By Toby Forage.

Disregarding Smith’s questionable career, she has been at the center of two different major will problems. First, she was married to J. Howard Marshall, who died without including Smith in his will. Since Marshall’s estate was a total of $1.6 billion, Smith certainly fought hard to get the half that she claimed her deceased husband had promised to her.

Smith’s will contest went all the way to the Supreme Court in 2006, where the Court ended up deciding in Smith’s favor. But the matter didn’t end there. The case was remanded to the 9th Circuit Court of Appeals to handle the remaining issues. With Smith’s death in February of 2007, her will contest remains unresolved. Although perhaps her surviving daughter will carry it on.

Which brings me to Smith’s second will issue. Her will specifically omitted any children not living at the time of executing the will. Her only child at the time of the will died before Smith. The only child to survive Smith wasn’t born yet when she executed the will. What a mess! As my Chicago colleague, Joel Schoenmeyer, puts it, ” the attorney who drafted it has some serious explaining to do.”

Daniel B. Fayerweather

Fayerweather Hall at Columbia University, a beneficiary of Daniel B. Fayerweather's estate.

Who? Fayerweather died in 1890, but the resulting fight over his estate is the subject of numerous articles in the New York Times archive. Certainly this case fits into a list of famous will contests.

Daniel B. Fayerweather died in New York, leaving an estate worth $5 to $6 million. Adjusted for inflation, that is $114 to $136 million. No wonder people fought over it.

Fayerweather’s will divided $2.1 million among twenty different colleges. The will then gave the residuary of Fayerweather’s estate to his executor. His widow and three nieces (his only heirs at law) objected to the will and its codicils.

Instead of keeping $3 million for themselves, the executors gave away everything under a lengthy deed of gift. As the New York Times reported in 1891, the heirs finally withdrew their will contest. They ended up being happy with increased gifts out of the huge estate.

Heath Ledger

Heath Ledger at the Berlin International Film Festival. By Howie Berlin.

When Heath Ledger died earlier this year, his will wasn’t updated. It was executed before the birth of his daughter, and the will left Ledger’s estate to his parents and siblings. His young daughter was completely left out.

Due to this issue, the family was divided over the proceeds of Ledger’s estate. Even though everyone claimed they were just looking out for Ledger’s daughter, it was still a bit of a fight. Fortunately, the family agreed to give everything to the daughter.

Howard Hughes

Howard Hughes in Inglewood, California in the 1940s.

When this reclusive billionaire passed away in 1976, he left no will. A purported will was brought forward. However, it was proven to be a fake.

Hughes’ estate was finally distributed under intestacy laws in 1983. His 22 cousins split $2.5 billion. That’s certainly a great pay day for them, but Hughes probably would’ve wanted some alternate distribution, if he had legally set forth his choices.

This estate mess dragged on for at least 20 years, with an IRS battle still pending in 1997. Look what happens when you don’t have a valid will.

Cassius Clay

Cassius Clay between 1855 and 1865. By Matthew Brady.

While Howard Hughes died with no will, General Cassius Clay left no less than five wills. Sadly for his heirs, they all conflicted with each other.

General Clay was a famous abolitionist and author of the 19th Century. President Lincoln selected Clay as the U.S. Minister to Russia in 1861.

When Clay died in 1903, his heirs brought forward five different wills. The latest will was proffered by the girl Clay married when she was only thirteen-years-old and he was eighty-nine. Under that will, Clay’s former young wife would take $10,000 in U.S. bonds and Clay’s land in Clay County, Kentucky.

Another will was offered by one of General Clay’s sons: Brutus J. Clay. Under that will, Brutus would inherit Clay’s entire estate.

After almost a year of court battles, all of Clay’s wills were thrown out as invalid. The judge determined that General Clay did not have the proper capacity to create any of the wills. This is no surprise, since his children had him decreed insane shortly before his death.

Are you considering a Virginia trust as part of your estate plan? If so, I encourage you to read a new MSNBC article on why a trust may be the best tool for you.

Overall, this article does a great job of boiling down some of the top pros and cons to using a trust in your estate plan.

Some reasons you might want to use a trust include: asset management, probate avoidance, and tax planning.

But you do have to make some trade-offs if you choose a trust over a will. One factor: trusts are typically more complicated to draft, so they are more costly to setup.

I do have one word of caution about the MSNBC article: do not allow just any “professional” to draft your trust. I’m not sure why the article does not simply talk about attorneys as trust drafters.

A trust is a complex legal document. In the United States, only an attorney is legally allowed to consult with you about your needs and draft a document for you. No other “professional” should be doing this for you. You might be able to save some money up front by using software or a fill-in-the-blank form, but your heirs could face serious headaches and legal problems when your trust matters most.

If you’re a person of modest means, you may think that you don’t need a will. Virginia does have laws that specify who gets your property, if you die without a will. But not drafting a will means that you don’t have control over many important decisions.

As discussed by this great BBC News article, one of those decisions is selecting your executor. If you don’t have a valid Virginia will, anyone who is over the age of 18 can apply to be appointed as your estate’s administrator. If you execute a valid will, you can designate the exact person who will take care of your estate.

The BBC News article really hits on the importance of having a competent executor. This person will have a wide degree of latitude in administering your affairs. And you definitely want to make sure the executor has financial skills and conflict-resolution abilities.

A good executor can truly save your heirs time and trouble. Do your family a favor and execute a valid Virginia will.

Today I ran across an interesting news article about an Australian will contest. An elderly lady died, leaving two wills that give $5 million each to three different couples. Now the deceased woman’s family is fighting to prove that the wills are fraudulent.

This real-life will contest highlights the importance of drafting and executing a solid Virginia will. You can certainly try to draft your own will or use a computer program to do it for you. However, your heirs and beneficiaries could end up in a lengthy will contest.

In the Australian case, the decedent’s heirs are claiming that she didn’t have capacity to execute the wills in question. That’s a hard standard to meet in Virginia. Capacity to execute a will only requires that you know the nature of your property, your natural heirs, and the disposition of property the will is making. This is a lower level of capacity than you need for almost anything else under the law. Proving incapacity is fairly difficult.

To help prevent a will contest, I can insert specific language in your will. A “no contest” clause could specify that anyone who contests the will automatically takes nothing under it. Of course, a clause like this is only effective if the will stands and is admitted to probate.

The moral of this story: consult an estate planning lawyer. I would love to talk to you about your needs.

There’s a lot of confusion in the public about what a power of attorney does for you. I regularly have to explain this important document to my estate planning clients.

Basically, a power of attorney gives someone else the legal authority to make decisions for you. This document doesn’t substitute their authority for yours. It simply gives them the ability to make decisions when you’re not available.

The key estate planning reason to execute a power of attorney is to plan for the unthinkable: your inability to make your own decisions. If you have a durable general power of attorney in place before you become incapacitated, your agent (or “attorney-in-fact”) can make legal, financial, and medical decisions for you.

Without a proper power of attorney, you and your family could be in a bind if something happens to you. Many people assume that a close family member can simply make decisions for them. However, that is not the case. If you are not able to make your own decisions due to incapacity, your family might have to get a guardian and/or conservator appointed for you. This entails a court procedure which costs money and will probably require help from an attorney.

The best thing you can do ahead of time is to execute the proper power of attorney. I typically provide this service for free to anyone who hires me to draft their will or trust.

A power of attorney is a simple, but incredibly important document. Don’t neglect it.

Photo by bitzcelt

When I work with married couples on their estate plans, many of them ask the same question: do we need separate wills?

This is one legal question that an attorney can answer with a simple answer: yes. Each spouse should have his/her own will.

A will sets forth what the testator (the person making the will) wants to happen to his/her property at death. Every adult should have his/her own basic Virginia will.

The best legal practice requires a husband and wife to have separate wills, so everything is clearly set out. You want to make sure your will conforms exactly to your wishes and the language isn’t confusing. If your will isn’t done properly, your heirs will be the ones to find out after you’ve passed away. You certainly don’t want that.

Even though spouses need their own wills, they can still be mirror images of each other: if the husband dies, everything goes to the wife; if the wife dies, everything goes to the husband. Because many spouses choose a disposition like this, I plan the estates of spouses for a lower cost than I do for two individuals.

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If you are an adult in the state of Virginia, you need to consider having an estate planning lawyer draft your will. A Virginia will must comply with specific requirements to have legal effect. If you try to write your own last will and testament and fail to follow the proper requirements, it could be simply brushed aside by the Virginia legal system. Since everyone wants to have a valid Virginia will, here are the key requirements to follow.

As we get started, note that there are lots of different types of wills. This article is just focusing on Virginia simple wills. However, even that term is misleading. Very few estates are actually simple; that’s why hiring a Virginia will lawyer is important to protect your family.

Virginia doesn’t prescribe a specific form or format to have a valid legal will. But there are certain formalities that must be met. These are the key Virginia will requirements.

Non-hand-written will

If your will is not in your own handwriting, it must meet these statutory formalities:

1. In writing
2. Signed by the testator (the person whose will it is)
3. Signed in the presence of two witnesses
4. Signed by the witnesses in the presence of each other and the testator

Hand-written will

A Virginia will can be hand-written (also known as a “holographic will”). But it must be written entirely in your own handwriting. And upon your death, two witnesses would have to testify that the handwriting is indeed yours. You still have to sign the will, even if written entirely by your hand.

Virginia will code

This is just a summary of some of the key requirements for Virginia wills. Virginia Code § 64.1-49 specifies them:

No will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and moreover, unless it be wholly in the handwriting of the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. If the will be wholly in the handwriting of the testator that fact shall be proved by at least two disinterested witnesses.

Testamentary capacity

In order to execute a valid Virginia will, you must be at least 18-years-old. In addition, you must have “testamentary capacity.” That’s a legal term that simply means you have to know what you are doing in the will. It most cases this isn’t an issue. You basically have to know these things:

• The extent of your property
• Your natural beneficiaries
• The disposition your will is making

Virginia will law doesn’t require that you know all of your property or the precise value of your estate. You just need a general understanding.

Now you know the basics of creating a will in Virginia. But please remember that this is a complex area of Virginia law, and you should consult an estate planning lawyer to help with your will.

Photo by shoebappa. Downtown Norfolk, Virginia.

Planning for the future can be daunting. But it doesn’t have to halt your life.

As a Fredericksburg estate planning lawyer, I can help you create a comprehensive estate plan quickly and easily. It won’t take hours of meetings and weeks of waiting. You’ll be done before you know it. Here’s why:

I value new methods of communication. One big goal in my law practice is to make things efficient for clients like you. This philosophy directly affects the ease with which we can finalize your estate plan.

Here is how an estate planning matter can be handled:

1. You call or email me and tell me that you need your estate planned (will, trust, power of attorney, etc).
2. If you want to meet in person, we can. I even offer evening and weekend appointments. Or you can provide all the information I need over the phone and/or email.
3. I draft your estate plan, including whatever documents we decide are best for you: will, trust, power of attorney, advance directive, and/or living will.
4. You review the documents and I make any necessary changes. We can exchange documents via email, fax, mail, or courier.
5. We schedule a meeting at a time and place that is convenient for you. I bring a notary and your final documents. You sign everything, and you’re done!

As you can see, this process isn’t intensive. It doesn’t require you taking time out of your busy day to trek downtown to meet with me. You can have the services of a Fredericksburg estate planning lawyer without the typical inconvenience of hiring an attorney.

If you would like to meet with me about your estate planning needs, please contact me. I’d love to discuss how I can help.

Photo by BURИBLUE

Most people underestimate the importance of a comprehensive estate plan. And even if you have a solid plan put together, how old is it?

An old, outdated estate plan does virtually no good. You’ve put your wishes in writing, but they’re out of date. If you die with an old estate plan it place, your current wishes won’t be carried out. It’s that simple.

A good estate plan should change and evolve as your life goes on. Your family and assets change, so should your legal plan.

My recommendation is to re-asses your estate plan at least every five years. You probably buy a car about that often. Why shouldn’t you check over your will, trust, etc?

In addition, you should also visit your estate planning lawyer anytime you cross a major life milestone. Events to consider an estate update include:

• Marriage
• Divorce (even just legal separation)
• Childbirth
• Adoption
• Death of family member
• Property acquisition (especially house, vacation home, etc)
• Major surgery

Don’t let your estate plan get old and dusty. Make sure it’s fresh and truly reflects your wishes.

If you need help, contact Andrew, your Fredericksburg estate planning lawyer.

Photo by monkeyc.net