Barbara S. Jenkins, PLC Attorney at Law, Criminal Law, Domestic Law, Juvenile Law, Litigation, Special Education, Traffic, Wills & Trusts.

I advise clients writing wills and trust instruments as to how to transfer their assets to their families and favorite charities at the lowest possible tax cost. I draft wills that have meaning to my clients' families and accomplish their desires, Advanced Directives to protect my clients when they are most vulnerable, and Powers of Attorney to delegate power to pay bills and administer to other important needs for my clients in times of dependency. I am regularly engaged in the administration of trusts and estates and represent clients in probate proceedings and prepare inventories and accountings.

ESTATE PLANNING FOR THE SMALL TO MEDIUM ESTATE
The information in this section is intended for educational purposes only. I do not intend to offer any legal advice or opinions. Please consult your local Wills and Trusts attorney for such advice.

Wage-earning people and the poor can benefit from legal tools normally only obtained by wealthier clients. These legal protections are not expensive and can prevent serious problems for families that can be very costly. There are three basic documents to consider:
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GENERAL DURABLE POWER OF ATTORNEY
This General Durable Power of Attorney (POA), see Virginia Code §11-9.1, allows you to appoint someone else to act on your behalf if you are not able to act i.e. car accidents, strokes, severe illness, dementia, out of the country for a lengthy period, military service. The power you give this other person can be so broad that the other person can do anything with your assets and income that you could do. Or it can be drafted narrowly to only give the other person power to do a specific thing, like paying your bills. The power can be for a specified time, it can begin immediately, or it can begin only when you become incapacitated.

If you become incapacitated, no one will be legally permitted to open your mail, sign your checks, sell your property, withdraw from your bank account, make gifts, pay your taxes, etc., without either a POA or court appointment as your Guardian and Conservator. The court appointment of a Guardian and Conservator is an expensive and very lengthy process and should be avoided if at all possible.

A properly drawn POA can be very beneficial. WARNING: The POA can also be very dangerous. The person you entrust with your assets and income may take the money, sell the assets and leave you with nothing. This has happened to men in military service who gave their wives a POA before going overseas. You need to be very careful who you give this power to and how broad a power you give.
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ADVANCED DIRECTIVE
Many people are afraid of being helpless and in pain before they die. They may not trust doctors and nurses to make decisions for them. They may not trust certain family members. The law has provided a way to plan for this problem, but you have to complete this plan ahead of the time you may need it.

Health care providers must honor your right to determine what shall be done with your own body. That is why they ask you to give your informed consent prior to treatment. However, you cannot give your consent if you have medical, physical or emotional problems that prevent your from telling your doctor what you want.

Virginia law provides for an Advanced Directive, see Virginia Code § 54.1-2982 et seq., which is a form that allows you to tell your doctors and nurses what treatment to give you if you become terminally ill. You do not need an attorney to prepare this form and they are readily available through hospitals, nursing homes, etc.

However, an attorney can prepare a document for you to name someone you trust to make medical decisions for you if you become incapacitated. This document can give much more specific directions to your health care provider covering medical conditions other than terminal illness. Not only is it important to provide this information but it is important to make sure all health care providers will have this information if the need arises.
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WILL
1. Many people do not want to think about their death. They will say that they do not have much and that it will be too expensive to hire an attorney to write a Will. What happens to such a person’s property when he or she dies? Virginia law decides who gets the property and it will be distributed as follows, see Virginia Code § 64.1-1:

a. To the spouse, unless he is survived by children by a prior marriage. If there are such children, the spouse will receive 1/3 of your estate and the children will receive 2/3;
b. If no surviving spouse, to his children and their descendants in equal shares;
c. If no children, then to his father and mother or the survivor;
d. If no parents, then to his brothers and sisters and their descendants;
e. If no brothers and sisters then ½ to his paternal kindred and ½ to his maternal kindred; and so forth.

If you are completely happy with the way that Virginia will distribute your property, you may not need a Will.

2. What are the common reasons people do want a Will?
They want to specify who will handle their estate.
They want to specify a Guardian for their children.
They do not want the spouse to receive everything.
They want one child to receive more than the others.
They want to give money or property to a charity.
They want to give their entire estate to a friend or long-time housekeeper. Their estate includes real property.
They want to avoid taxes.
They want to protect their money from creditors.
They want to give specific gifts to certain people.
They want to provide for a pet.

3. The next question is usually, “Why can’t I write my own Will?” People have heard that they can write out what they want or buy a kit from a stationery store.

In Virginia, holographic Wills (written by the testator) are legally acceptable, see Virginia Code §64.1-48. Holographic Wills are entirely in the writing of the testator and signed by the testator or by some other person in his presence and by his direction. The signing must be done in the presence of at least two competent disinterested witnesses, present at the same time who also sign the Will in the presence of the testator.

However, writing your own Will is like doing your own brain surgery. Unless you are an attorney, you do not know what requirements must be fulfilled in addition to the above requirements to make the Will valid and you open the Will up to legal challenges. Kits that you buy are often generic to all states, but each state has its own peculiar laws relating to Wills. If you make a mistake, it may invalidate your Will and your property will be distributed by Virginia law as if you had never written a Will. In addition, people often change their minds about who they want to have their property. When they die, they leave many pieces of paper with conflicting schemes. Then, a court may have to decide what the testator intended and the estate may be consumed in litigation.

4. If I hire an attorney to draft a Will what should I look for?
Your attorney should ask you a number of questions about your property, your family members and how you wish to distribute your property. Your attorney should discuss how estate taxes may affect your estate. In order to create your Will, your attorney will begin with a form Will and make changes to it to reflect your needs. You will review the draft Will and when you are satisfied that you understand it and that it says exactly what you want it to say, you will schedule the Will ceremony with the attorney. At the Will ceremony, there will be a notary public and two witnesses (in Virginia). The Notary Public will follow a script of steps to be sure that the execution of your Will meets all of the legal requirements. The attorney will advise you about where to store the original of your Will and give you a copy. If you wish to make any changes, the attorney can easily make those changes and a new Will can be executed. The point of this procedure is to avoid challenges to the Will, ambiguities in the Will, and mistakes so that the Executor is able to understand what the testator wanted to do with his property and the estate is not depleted by court proceedings.

Even if you have a small or medium-sized estate, these three documents can save you a lot of money and concern. The cost is usually a few hundred dollars depending on how complicated your estate turns out to be and is a good investment in your peace of mind and that of your loved-ones.
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