Wills & Probate

Wills = Family Peace-of-Mind

Everyone knows that it is important to have a Will. If you have a will, you are in control of who gets your property after your death. If you die without a will, your estate is subject to what is called Intestate Succession Law (which simply means “without a will” or “without a testament”).

If you die ‘intestate’ in Virginia, the legislature of Virginia dictates how your probate estate will be distributed. In many cases, this is what many folks want, so it is not necessarily “the end of the world” (so to speak). In some cases, however, it is vastly different from what you may have wanted. Here are a few thoughts for your consideration:

Virginia Law & Wills

If you are married with children, and the only children around are the biological or adoptive children of you and your spouse, and you die without a Will, then your spouse will inherit everything. Most people want that anyway. BUT if any of your children have a parent other than your surviving spouse, only one-third of your estate will go to your spouse and the remainder will be split among your children.

If you are not married and have no descendants, your parents will inherit your estate. If neither of your parents is living, other specified family members will inherit your estate. The possibility of the proverbial “laughing heir” is very real here. (The “laughing heir” is a very distant relative who does not know you, does not care about you, but will gladly take the money generated by the sale of the assets of your estate, laughing all the way to the bank.) If you are single and have no children, you may wish your estate to go to a close friend, a life partner, a charity or other non-profit organization before it goes to relatives unknown. That will happen only if you have a Will.

* (By the way, it is simply not true that if you die without a Will your estate automatically goes to the state. It goes to your relatives. If no relatives of yours can be found within the appropriate degree of relationship, then it is possible that the state would receive the assets of your estate, but that is an extremely rare circumstance.)

Of Course You Still Need A Will…

So let’s say you have no minor children for whom a guardian should be appointed, and the intestate distribution we described above is just what you had in mind. In that case you don’t need a Will, correct? Well, here the call becomes more difficult. Here are three more issues you may wish to consider:

1. If you die without a Will, an administrator will be appointed to manage your estate. Generally, it will be a family member. But in order to serve, he or she will have to pay for a surety bond. This is a cost that can be avoided with a Will, which would waive any requirement that a bond be posted. If your estate is, let’s say, $200,000, the bond can run close to $1,000. Of course, the money is not ‘yours’ anymore (given that you will be dead and all), but saving that money for your heirs is something for you to consider.

2. If you die without a Will, and your estate consists of a lot of real and tangible personal property, the clerk of the court may require that you have the estate professionally appraised. Again, this is a cost that you will not personally incur (same reason as in scenario #1), but it still is an issue that you may wish to keep in mind as you decide whether or not to write a Will.

3. Just because your children are adults does not mean that they are “adults ready to maturely handle a potentially large sum of money.” If you have concerns about your children receiving a large sum of money at a young age, you can draft a Will that ties up a child’s share until he or she reaches certain ages corresponding with maturity and stability. A popular distribution pattern is a small lump sum at age 18, one-third of the remainder at ages 21, 25 and 29. Any ages, and any number of other patterns are possible — your choice — but you can only do this via a Will or a trust.

Gifting To Charity(ies)

In addition to issues above, you may want to make a gift at your death to a favorite charity: your house of worship, your alma mater, a general charity such as the Red Cross or a specific charity whose purpose is to find cures for diseases (e.g., American Cancer Society, Alzheimer’s Association, etc.), or advance other important causes. You can favor any charity of your choice within the body of a Will.

Avoid A Hassle For Your Family

You do not know when you are going to die. When you do, and if proper planning has not been done, your death can create great havoc (especially if persons you did not intend to receive the bulk of your estate begin removing their items from your marital home that you intended to preserve for your spouse). So, take just a few moments to plan what will happen with your estate at your death. Consider the ease and low cost of creating a standard Will. It is something everyone should consider doing once they have accumulated assets or have children.

Of course, if you have questions about any of the above, we at Denbigh Law Center are happy to discuss them with you.