Based on my knowledge of estate planning, I recently gave a talk—titled “Planning for Your Future: Powers of Attorney, Wills and Probate”—to a group of approximately sixty people, and answered questions throughout. That hour was a wake-up call for some members of the audience regarding these important planning issues:
When a Power of Attorney Ends
A Power of Attorney ends at the death of the principal (the person who gave their agent the power). It is not valid after the death of the principal.
What Happens If You Don’t Have a Will
If you don’t have a Will, your assets will be distributed at your death under the Virginia Intestacy Statute. The provisions of that Statute may not be the way you want your assets distributed upon your death. One important aspect of that Statute provides that if the decedent left a spouse and children who are not children of the surviving spouse, the children receive 2/3 of the assets and the surviving spouse receives 1/3.
Practice point: If you have a blended family and want a different distribution than the above, you need a Will.
A second important reason to have a Will is when you own real estate. If you own real estate in your name alone (or jointly, upon the death of the last joint owner) and you don’t have a Will granting your Executor the power to sell real estate, your Executor or Administrator will have to appear before a judge to be granted the power to sign all documents relating to the sale of the real estate, including the listing agreement, Contract to Sell, Deed and all closing documents. Alternatively, the signatures of all heirs will be required on all documents (Contract, Deed, etc.) for the sale of the real estate. In some families, getting signatures of all heirs can be difficult and time-consuming.
Practice point: If you have a blended family, own real estate, or want to control the distribution of your assets at your death, you need a Will.
Integration of Wills and Non-Probate Assets in the “Big Picture”
The “big picture” plan. I have had clients tell me in our initial office conference that they want a certain division of assets; however, they may have joint accounts with right of survivorship, payable on death accounts, beneficiaries of life insurance; or IRA’s that don’t provide the division they want.
Practice point: Prepare a chart of how you want your assets divided at your death and fill in all of your assets, including the assets with named beneficiaries and look at the “big picture” to make sure the distribution of all of your assets is taken into consideration.
Ms. Fine practices in the following areas: business law, estate planning, equine law, real estate law, or civil litigation. Please reach out if you need assistance.
