Do You Need a Will if You Have a Trust in Virginia? 

October 15, 2024 – Matthew S. Akers & Douglas McCarthy

Virginia will attorney answers the question, "Do you need a will if you have a trust?" Call (540) 722-2181 to schedule your consultation to update your estate plan.

In our last blog, “5 Advantages of a Trust in Virginia,” we explored the many benefits of incorporating a trust into your estate plan. We explained how trusts can help you avoid probate, maintain privacy, and provide more control over asset distribution. But if you’ve decided to set up a trust, you might be wondering, “Do you need a will if you have a trust?”

Many people believe that once they’ve set up a trust, they no longer need a will. However, that’s not usually the case. If you’re a Virginia resident considering your estate planning options, you might be surprised to learn that having both a trust and a will can give you more control over your assets and personal wishes than relying on a trust alone.

While trusts are powerful estate planning tools, they don’t completely eliminate the need for a will in most cases. Let’s examine the details to help you understand why having both a trust and a will can create a more comprehensive estate plan.

What is a Last Will and Testament?

A will, also known as a Last Will and Testament, is a legal document that outlines how you want your assets distributed after your death. It also serves other critical functions, such as naming guardians for your minor children and appointing an executor to manage your estate. Unlike a trust, a Last Will and Testament directly handles all assets that are not placed into your trust and ensures they are distributed according to your wishes.

If you don’t have a Last Will and Testament, your estate will be subject to Virginia’s intestacy laws, meaning the state will decide how to distribute your assets. This may not align with what you would have chosen, making a will essential if you want control over your estate.

Key Functions of a Last Will and Testament

Naming Guardians for Minor Children

If you have minor children, one of the most important reasons to have a Last Will and Testament is to name a guardian for them. In Virginia, the court will look to your will for guidance on who should care for your children if you pass away. Without a will, the court will decide on a guardian, and their choice may not reflect your preferences.

Only a Last Will and Testament can designate guardians for minor children in Virginia, as a living trust (also known as a revocable trust) does not cover this critical issue.

Distributing Assets

While a trust can manage certain assets, there are often personal or smaller assets—such as family heirlooms, jewelry, or personal effects—that you may want to leave to specific individuals. Your Last Will and Testament allows you to make these specific bequests, ensuring your personal property is distributed exactly as you wish.

Handling Debts and Taxes

A will also allows you to specify how your estate will handle debts and taxes. While Virginia doesn’t have its own estate tax, federal estate taxes could apply to larger estates. Without a Last Will and Testament, your assets will be distributed according to Virginia’s intestacy laws, which could result in unintended consequences for how debts and taxes are managed. A will allows you to specify which assets should be sold or used to pay off any remaining debts, allowing your beneficiaries to receive their inheritances free and clear.

Appointing an Executor

In your Last Will and Testament, you have the ability to name an executor. This person will manage your estate, ensure your wishes are carried out, and handle the administrative side of things, including paying debts, filing tax returns, and distributing your assets. Without a will, the court will appoint someone to serve as executor, which may not be someone you would have chosen.

Understanding the Pour-Over Will and Living Trusts

Even with a well-crafted Last Will and Testament and living trust, there is still the possibility of missing assets that don’t make it into the trust during your lifetime. This is where a pour-over will becomes essential.

What is a Pour-Over Will?

A pour-over will directs that any assets not titled in your trust’s name at the time of your death are transferred, or “poured over,” into the trust. Essentially, it acts as a safety net for assets that were not moved into the trust during your lifetime. If you forget to transfer a newly acquired property or other assets into your trust, the pour-over will makes sure they are added to your trust after your death, rather than being distributed according to intestacy laws.

Note: Even though a pour-over will moves assets into your trust after your death, those assets will still need to go through probate first. While the pour-over will eventually transfers forgotten assets into the trust, it does not bypass the probate process for those assets because they weren’t titled in the trust before your death. To fully avoid probate, it’s critical to transfer assets into your trust while you’re alive and properly fund the trust. The pour-over will is a backup plan—not a replacement for proactive management of your trust during your lifetime.

Having both a Last Will and Testament and a trust provides comprehensive protection for your estate plan. While your trust helps manage and distribute your assets efficiently, your Last Will and Testament is crucial for handling important personal matters that a trust does not address, such as naming guardians for minor children, specifying personal bequests, and managing debts.

The pour-over will serves as a final safety net to ensure any assets not included in the trust are eventually transferred to it, providing comprehensive coverage. Together, these tools create a secure, well-rounded estate plan that protects your legacy and ensures your wishes are honored.

For an estate plan that fully protects your assets and legacy, consult with an experienced Virginia will attorney. They can help you develop a personalized strategy, ensuring that every detail of your estate is carefully planned and executed.

Strengthen Your Estate Plan: Combine a Will with Your Trust

You’ve now discovered why having both a will and a trust is crucial for a robust Virginia estate plan. But understanding the concept is just the first step. The real value comes from implementing this knowledge to protect your assets and honor your wishes.

At McCarthy & Akers, we recognize that integrating a will into your existing trust-based plan—or creating both documents from scratch—requires careful consideration. Our Virginia estate planning attorneys are equipped to help you navigate this process efficiently and effectively.

Consider the peace of mind you’ll gain from knowing that your estate plan is truly comprehensive. With our guidance, you can ensure that your minor children have legally designated guardians, all your assets are accounted for (whether in your trust or caught by your pour-over will), and you have a thorough strategy for both incapacity and asset distribution. By combining the strengths of wills and trusts, you’ll close potential gaps in your estate plan and create a seamless approach to securing your legacy.

Don’t leave your estate plan incomplete. Let McCarthy & Akers help you create a personalized estate plan that ensures both your assets and your family’s future are fully protected, leveraging the strengths of both wills and trusts. Ready to fortify your estate plan? Instead of searching online for “wills and trusts attorneys near me” or “estate planning law firm near me,” reach out to McCarthy & Akers directly. Call us at (540) 722-2181(540) 722-2181 or contact us online to schedule your consultation. With offices in Strasburg, Woodstock, Front Royal, Winchester, Manassas, and Warrenton, we’re conveniently located to serve you throughout Virginia.

Protecting your family and securing your legacy is too important to leave to chance. Let McCarthy & Akers help you craft a plan that ensures every detail of your estate is handled with care.

Copyright © 2024. McCarthy & Akers, PLC | Estate Planning Attorneys. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.

McCarthy & Akers, PLC | Estate Planning Attorneys
302 W Boscawen St.
Winchester, VA 22601
(540) 722-2181(540) 722-2181
https://mccarthyakers.com/

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