Craig P. Tiller, Esq., PLLC
Serving central Virginia For more than 25 years: 434-338-7093

Forest Simple Estate Planning Blog

What wills are not designed to do

Virginia residents who want to leave clear instructions for how to handle their estates should create a will. However, there are limitations as to what a will can do. For instance, it generally doesn't have any say over what happens to property left in a living trust. It also doesn't have any say over what happens to property that is titled in joint tenancy.

If an asset has a beneficiary designation attached to it, the beneficiary will get the asset upon the current owner's death. Typically, assets such as the cash value of a life insurance policy or money in a retirement account goes directly to a beneficiary. Individuals should also understand that wills go through probate and that they are not always the best way to leave funeral instructions. This is because most wills aren't reviewed until after the funeral has already taken place.

How power of attorney benefits senior health care

Receiving quality health care during one's senior years is a crucial part of aging for everyone. There are several very important documents that can help seniors ensure that they get the care they need. These documents include living wills, advance directives and powers of attorney. In Virginia, living wills can go by several different names. They are usually printed on brightly colored stock and provide directions to caregivers about what procedures to do or not do in case of an emergency.

A power of attorney is another powerful tool for making health care decisions. There are many different ways power of attorney can be granted through documentation, and each will be different depending on the needs of the specific grantor. At its core, this legal tool gives a third party power to make important decisions for the grantor in the event of incapacitation.

An overview of the full power of attorney

If a person is granted full power of attorney, he or she can make financial or medical decisions on a Virginia resident's behalf. This may allow an agent to enter into contracts or put an end to those that the principal has previously entered into. An agent may also be granted access to a person's safe deposit boxes or gain access to digital accounts. Therefore, it is important for a person to think carefully before granting this power.

An agent may be able to exercise the power of attorney as soon as the document is created. However, it may also be crafted to only take effect if the grantor becomes incapacitated for any reason. For instance, it could take effect if a person is recovering from a medical procedure or falls ill but expects to recover. Such an arrangement is known as a springing power of attorney.

Choosing the right executor for your will

Most people are uncomfortable talking about their own mortality, but it’s important to plan for your wishes at the end of your life. If you have a spouse, children or grandchildren, having a will in place will provide for your family’s future needs and ensure that your preferences are followed.

When you create a will, one of the components involved in the process is designating an executor to administer your will once you pass on. The executor is responsible for following your wishes outlined in the will and executing the will according to the law.

What a will does in an estate plan

Unlike a trust, a will must be recorded so that somebody can be granted authority to transfer assets. This is not the case when a trust is created. That's why trusts may be better for some estate owners in Virginia. As with a will, trusts may contain instructions as to how assets are to be transferred. However, the trustee is the one who is granted the power to do so without the need for a court to get involved.

It is possible that small estates can be settled without the need to go through a formal probate process. While this may be faster and easier, there are significant downsides. For example, the will may only be valid for a certain period of time after a person passes if it is not filed. Once this period of time passes, there may be no way to transfer an asset according to the terms of that document.

Revoking a power of attorney when estate planning

Granting powers of attorney is a common part of the estate planning process. In some cases, however, a grantor may actually want to revoke this power. There are three distinct ways to accomplish this goal. The first is to include a termination date in the original POA agreement. While this is not a common method for revoking this privilege in Virginia or other states, it can work when a client only intends to hand this power over during a specific period of time.

A second way power of attorney is eliminated is upon the death of the principal. When the principal passes away, power of attorney is revoked under the law except for certain special exceptions, such as giving anatomical gifts, requesting an autopsy and making some final arrangements. Termination of power of attorney through a predetermined date or death, however, are not very helpful options for a living estate owner looking for a solution.

Enduring and general powers of attorney

An enduring power of attorney is a document that legally appoints a person to act on behalf of another with regard to financial or legal issues. They can be useful in situations where someone becomes ill or incapacitated or is spending an extended period of time outside of the country. People in Virginia might find that creating a power of attorney grants peace of mind and provides assistance when the need arises.

The difference between a general power of attorney and an enduring power of attorney is that the enduring power of attorney exists for an indefinite period. A general power of attorney usually sets forth a time period during which another person can make one's financial decisions and thereafter expires. In either case, the person appointed to act as attorney-in-fact must be older than 18 years old and should not have a direct financial stake or interest in the person who makes the power of attorney.

The importance of signature requirements in a will

The Commonwealth of Virginia, like each state in the union, has its own statutory requirements for what constitutes a valid will. A testator, the person making the will, must be a minimum age of 18 and have the proper testamentary capacity. Testamentary capacity is a lower standard than other mental states of mind and essentially means the testator understands the nature of his or her estate and is executing a document directing who receives the property upon death. It is the signature requirements, however, that cause more wills to fail than any other issue.

The testator should sign and date the will in the presence of two witnesses, both over the age of 18. These witnesses must then also sign the will in the presence of the testator. Although there is no form of attestation required by law, legal experts recommend having the witnesses sign a self-proving affidavit in front of a notary public. This may be useful if at some later date the will is challenged.

What makes a will valid in Virginia?

It’s a hard subject to talk about, but planning for your death by creating a will is an important part of caring for your family. It outlines your wishes and intentions upon your death and can alleviate potential stress for those you love. With a will, you’re creating long-lasting consequences to protect your family.

A will doesn’t need to be complicated, just enough to fit your needs, protect your assets and provide you some peace of mind.

Updating wills

Virginia residents should ensure that their will is regularly updated. Many life events can impact who is a potential beneficiary or heir. If individuals fail to update their last will and testament when necessary, the document may not be an accurate reflection of their wishes given their new situation.

For couples who get married, both parties should make sure to create their own new will. The majority of states require that a percentage of a married person's estate should be awarded to the spouse if the person dies. For married individuals who want to make other arrangements for their estate, they should make sure to detail this in their wills.

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Craig P. Tiller, Esq., PLLC

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Forest, VA 24551

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