Frequently Asked Legal Questions

The Will is commonly referred to as a "Pour Over Will." The Will governs the property held in your name at your death. The Will provides for the administration of that property and directs that the portion of such property remaining after the payment of your debts, expenses of administration, and estate taxes imposed on such property be added to your Revocable Trust.

The Trust Agreement creates what is typically referred to as a "Living Trust." The Trust Agreement is entirely revocable and amendable by you during your lifetime. The Trust Agreement becomes irrevocable and not subject to amendment upon the death of the first spouse to die.

Any property that you transfer to the Trust during your lifetime will avoid probate upon your death. Property that you do not transfer to the Trust will be subject to probate, but will pass to the Trust through the probate process.

The Trust Agreement contains the provisions governing the disposition of your property upon your deaths. The Trust Agreement provides for gifts, creates trusts, names successor trustees, and sets forth your instructions to the trustees. Your important estate tax planning is also accomplished through the provisions of the Trust Agreement.

You are the initial trustee of the Trust. Upon your incapacity or death, the person you have named to act as successor trustee will serve. You reserve the right to remove and appoint trustees during your lifetime and to designate who will serve as trustees in the future.

If a couple has minor children, it is very important to prepare a Nomination of Guardians to serve if both parents are deceased. A court proceeding in the Family Law court is required to formally approve a guardian, but the court affords the written nomination of the parent’s great weight in making its decision. Such a Nomination can avoid a "tug of war" between well-meaning family members. A properly drafted Trust will also provide for the management of your estate until such time as you deem your child is mature enough to receive a distribution.

If you have not legally arranged for your assets to be passed to your loved ones, there can be serious and a potentially negative impact on them. Your assets may be given to people you never intended to receive them.

Your family may also incur costly and avoidable out-of-pocket expenses, including the costs of a bond, legal fees, and hefty probate taxes, as well as a variety of administrative headaches that could otherwise be avoided with proper estate planning. A sudden death without a Will can also cause tension within the family over who is responsible for your estate and what assets are distributed to whom.

Probate is the court process that supervises and ensures that the wishes set forth in a person’s Last Will and Testament are carried out. The executor named in the Will, who is typically a family member or legal appointee, is appointed to sort out the decedent’s assets, pay any applicable taxes and debts on their behalf, and then divide the remaining assets to the named beneficiaries in the Will.

Even with a valid Will, the probate process can take a long time to complete. That time is extended if a person dies without a Will, as the court must supervise a personal administrator to locate all your assets and determine all of your outstanding debts, and pay them, and only then determine who will inherit your remaining assets under a statute which determines all distributions based on a priority of blood relatives.

Should you pass away without a valid Will, your assets will be distributed by the court according to Virginia’s laws of intestate succession.

No heirs-at-law means your asset pass to the Commonwealth of Virginia Finally, if a person dies without a Will has no surviving heirs-at-law under Virginia’s intestate succession statute, then the entirety of their estate will become the property of the Commonwealth of Virginia or otherwise be seized by the person’s creditors, which Virginia also allows to qualify as an administrator of a person’s estate if no one else seeks to be appointed for that person’s estate within nine months of their death.