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- How do I name a guardian for my minor children should both my spouse and I die?
- How often should I update my will?
- I did my will while living in another state. I now live in Virginia. Do I need to do a new will?
- Do I need a will?
- What is a general power of attorney?
- What is an advance medical directive?
- How should I make a bequest in my will to my minor children?
- I am recently married to a new spouse after a divorce from my previous spouse. I have children born of my previous marriage. I have no will. Who will receive my assets at my death?
- I currently have a will. I would like to make a small change to the will. How do I accomplish this?
- I want to give certain personal effects to certain individuals in my will. How do I accomplish this?
- My husband and I have a child with Down’s Syndrome. She is very loving and her two favorite things in the world are taking pictures and watching cable television cartoons. We are concerned that if my husband and I die in an accident and she survives, then her inheritance will be used up on the basics of her care and she will not have money to pay for a camera, film and cable television.
1. How do I name a guardian for my minor children should both my spouse and I die?
A: You name the guardian in both your and your spouse’s wills. You can name a primary guardian and one or more an alternate guardians. Naming the guardian in a will avoids a court proceeding to name the guardian.
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2. How often should I update my will?
A: You should, at a minimum, review your will every 2 years to remind yourself of what it provides. You should also review your will when major life change events occur (death, birth, adoption, marriage, divorce, increase/decrease in wealth, etc.). You may also want to contact your attorney every couple of years regarding any changes in the law that may affect your estate plan.
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3. I did my will while living in another state. I now live in Virginia. Do I need to do a new will?
A: Not necessarily, but a review of the will is needed. The laws concerning wills and estate administration are different in each state. Upon the will being reviewed, the attorney may recommend changes as a result of a difference in state law, or the attorney may determine that the will is fine if state laws are similar.
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4. Do I need a will?
A: We recommend having a will so that your intentions regarding the distribution of your assets at death are clear. If you don’t have a will at death, your assets will be distributed based on the Virginia intestacy statute in effect at the time of your death. The intestacy statute may not provide the result that you actually wanted. Having a will also allows you to choose who will serve as your executor and to name a guardian for any minor children.
In some instances, you may wish to reduce the expenses in your estate by making a statement in your will that you do not wish to require surety on the bond of your executor.
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5. What is a general power of attorney?
A: A general power of attorney is a document in which you name one or more persons to make legal and financial decisions on your behalf. A general power of attorney is an important document to have since it allows the named agent to act on your behalf, including if you are incapacitated. A general power of attorney can help you avoid adult guardianship should you become incapacitated.
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6. What is an advance medical directive?
A: An advance medical directive is a combination of two documents: a living will and a medical power of attorney. The living will portion allows you to state your wishes regarding life support should you have a terminal illness. The medical power of attorney potion allows you to name one or more agents to make medical decisions for you if you are unable to do so for yourself. An advance medical directive can help you avoid adult guardianship should you become incapacitated.Return to top
7. How should I make a bequest in my will to my minor children?
A: You can give the asset(s) to the minor child outright or in trust. If you give the asset to the minor child outright, the child will need a guardian to hold the asset(s) and the child will receive the asset(s) upon turning 18 years old. A better alternative is a trust for the minor child. With a trust, you can decide the age at which the child will receive the asset(s). A second alternative is to give the asset(s) to a custodian under the Virginia Uniform Transfers to Minors Act.
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8. I am recently married to a new spouse after a divorce from my previous spouse. I have children born of my previous marriage. I have no will. Who will receive my assets at my death?
A: This is a complicated question that requires additional information regarding your specific situation. The Virginia intestacy statute will control who receives your assets since you have no will. In general, your new spouse will receive 1/3 of your probate estate and your children will receive 2/3 of your probate estate.
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9. I currently have a will. I would like to make a small change to the will. How do I accomplish this?
A: An attorney can prepare an amendment to your will called a codicil. If the changes are more extensive, it will be more cost effective for the attorney to simply prepare a new will.
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10. I want to give certain personal effects to certain individuals in my will. How do I accomplish this?
A: You can provide for specific bequests of certain items in your will. However, a better option would be to have language in your will that allows for a separate signed list of bequests of tangible personal property to be treated as part of your will. This is allowed under Virginia law. This is a better option since you can change the list as many times as you want without having to amend your will through an attorney.
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11. My husband and I have a child with Down’s Syndrome. She is very loving and her two favorite things in the world are taking pictures and watching cable television cartoons. We are concerned that if my husband and I die in an accident and she survives, then her inheritance will be used up on the basics of her care and she will not have money to pay for a camera, film and cable television.
A: Your concern is warranted. Supplemental Security Income (“SSI”) and Medicaid are needs-based public benefit programs. This means she could only have a certain level of assets to qualify. These programs would not pay for anything except food, shelter and medical care. In fact, there is a very long list of things that she might have to do without if you and your husband do not create a Special Needs Trust. This is a document which would guide someone you have designated to be in charge of the trust fund for her.
You can arrange it so that it is not funded unless and until the deaths of you and your husband. SSI and Medicaid do not calculate the assets in a Special Needs Trust if the document is drafted correctly. This means that she could receive those public benefits at the same time her trustee pays for developing pictures, cable television, and a camera. The trust could designate other loved ones to receive the amount remaining in the trust at your daughter’s death. This type of Special Needs Trust is called a “third party” trust, which is different than a “first party” (sometimes called “self-settled” or “self-funded”) special needs trust.