Fairfax Will & Trust Attorneys
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FAQs for Fairfax Wills & Trusts Attorneys
What is a will? What does it do / not do?
A will is a legal document that determines who should receive your assets after your death. This document allows you name guardians for dependent children, as well as ensures that your property is distributed according to your wishes. A will may be modified or revoked during the lifetime of its maker.
Why should I have a will?
A will is necessary to ensure that your wishes are honored after your death. While its primary purpose is to distribute any property you own upon your death, it can also specify other provisions. These wishes can ensure that your spouse or partner receives all your possessions, and guardians are named for your minor children.
When should I get a will?
In most states, the minimum age to legally write a will is 18. Deciding at what age to write a will is a personal decision, but there are certain practical considerations that can help you determine the right time.
If you are married, have children, or have a positive net worth (assets exceeding $100,000), it’s almost always easier on your family to have a will or trust in place.
What happens if I die without a will?
The term for when a person dies without a will is “intestate”. Intestacy laws of the state where you reside will determine how your property is distributed upon your death. This includes any bank accounts, securities, real estate, and other assets you own at the time of death.
While intestacy laws vary, in general, each state’s laws provide a list of the decedent’s next of kin in the order while they will receive a portion of the estate. This process typically goes: spouse, children, parents (in the event the individual is single and childless), siblings.
What is a living will?
A living will is an advance healthcare directive. It is a document that lets people state their wishes for end-of-life medical care, in case they become unable to communicate their decisions. This living will is a set of instructions or an expression of wishes and desires that specifies the use or non-use of medical treatments and procedures that would artificially prolong life.
How do I get a will?
You can either create a will yourself or consult a lawyer. Regardless of whether or not you consult an estate planning lawyer, these are the basic steps to getting a will:
- Decide what property to include in your will.
- Determine who will inherit your property.
- Choose an executor to handle your estate.
- Choose a guardian for your children.
- Appoint someone to manage your children’s property.
- Make your will.
- Sign your will in front of witnesses.
- Store your will in a safe place.
Should I hire a lawyer to help me draft a will, or can I do it myself?
A lawyer is not required to make a will, like with a holographic will. Most people, however, do need a lawyer to make a proper will for multiple reasons.
1. To make sure the form and execution is correct so that the will is not considered invalid
2. To advise the clients as to what their options are when it comes to appropriately leaving their property to their beneficiaries. This ensures that it is quickly and efficiently distributed to the beneficiary, and also that the beneficiary is protected.
3. There are a lot of questions that might come up that the average lay person might not think about. This includes scenarios such as a child has a disability and receives federal or state benefits. In this case, if a will was holographic or done online was done leaving everything to the children and a child with a disability were to inherit, they may end up losing all of their government benefits because they inherited funds.
A lawyer can ask the questions that need to be asked, to make sure that both the person who is making the will and the beneficiary are protected. Having seen so many different scenarios play out, lawyers provide great insight into any issues that could arise that the average person may not think about.
What information and documents should I gather before I contact an attorney to prepare a will?
When creating a will, most attorneys will typically ask for a list of information. This includes information birth, marriage and divorce certificates, deeds and mortgages, bank account numbers, investment portfolio, insurance policy information, your beneficiaries’ full names, addresses and other contact information, your Social Security number, and the birth or adoption papers for any minor children you have.
You may also be required to list your advisors, such as your banker, accountant, investment dealer, and insurance agent.
How much does a will cost in Virginia?
The cost of a will depends on whether you're preparing yourself, getting something off the shelf from a big box store, or you're paying an attorney. For an individual preparing their will with an attorney, fees will range anywhere from $400 to $800 depending on the complexity of the will.
What is a trust?
A trust is a fiduciary relationship. It involves the transfer of property from one person (the settlor) to the control of another person (the trustee), to be held and used for the benefit of a third party (the beneficiary).
Trusts are established to provide legal protection for the trustor’s assets, to make sure those assets are distributed according to their wishes.
What is the difference between a will and a trust?
A trust is a will substitute. It's a contract that's prepared by the person who owns the property to determine how they want the property managed. It is controlled by the statutes relative to contracts, not those governing probate or wills, therefore, it avoids having to go through the probate process.
Since it is a contract, under the U.S. Constitution, a trust prepared in one jurisdiction (in the United States) is just as good as any other jurisdiction. Unlike wills, which can't necessarily cross over state lines, it's portable. Wills, on the other hand, may be valid in another state, if one state's statutes are similar enough to another state. If they don't meet the same criteria, however, then your will may be considered invalid in another state.
What is a "living trust"?
A living trust is a written legal document through which your assets are placed into a trust for your benefit during your lifetime. Upon your death, these benefits are transferred to designated beneficiaries by your chosen representative, known as the “successor trustee.”
What is a revocable living trust?
A revocable living trust is a popular estate planning tool that you can use to determine who will get your property when you die. Assets you place in the trust are transferred to your designated beneficiaries upon your death.
Revocable living trusts are “living” because you make them during your lifetime and can change or cancel the provisions at any time.
What are the recommended steps to probate a Will in Virginia?
1. Find the Will. The first step is to take the will to the clerk of the court, who will then file it.
2. Meet with your estate attorney. Prior to filing a will or making an appointment to meet with the Probate Clerk, you should always first consult with an estate attorney.
3. Take the will to the courthouse and file it. The clerk will then determine if there are assets within the estate that would need to be probated with a fiduciary; an executor or personal representative, to be qualified. You may be required to post a bond, and may need to arrange for an insurance agent to meet with you at the Clerk’s office at the time of qualification.
4. Open the bank account. Once the executor is qualified, he/she will open an estate account, to hold the funds of the estate.
5. Pull together the assets of the estate. The executor then begins to compile a list, called an inventory of all of the assets and determines what's to be done with the assets. This includes whether or not they need to be sold, distributed outright to the beneficiaries, or used to pay all of the bills and taxes of the deceased person.
6. Pay off all debts of the estate, distribute all assets, and file final accounting.
What's the time limit to probate a will in Virginia?
There is no time limit.
Do you have to file or record a will in Virginia?
You don’t need to record a will prior to death. You only would be required to record or file a will after death if there's property that would need to be probated.
What's needed for a will to be legal in Virginia?
There are two types of wills in Virginia:
- A holographic will, which is written entirely in the handwriting of the person making the will, and signed at the end with their legal signature.
- A print will (the typical will) is typed up, signed at the end, and dated by the person making the will and witnessed by at least two witnesses. These witnesses affirm the fact they saw the person sign the will.
It's also best to have a notary notarize having asked the witnesses that they signed in each other's presence and saw the will being signed. This call a self-proved will, which is ideally the best and most ironclad will.
What are holographic wills in Virginia?
A holographic will is a will written out in your own hands (handwritten, not typed), dated and signed on the date that you wrote out the will.
In Virginia, can a will be handwritten?
Yes. A holographic will -- written, signed and dated entirely in the hand of the person that's making it, and preferably witnessed by two witnesses -- is sufficient to be considered a will.
How do you file a will in Virginia?
An original copy of the will, with an original signature is taken to the clerk's office and presented to the probate clerk. The clerk will then certify that it meets all the criteria under the statute and file it or record it among the court records in that jurisdiction.
What are joint wills in Virginia?
A joint will, or contractual will, is one will made for both a husband and wife. They're out of fashion these days, since they often create more problems than they solve. A joint will would be a will that both spouses enter into under the same terms, and they are contractually bound to them regardless of who is the first to die. We typically advise against them, however, since in most cases, a trust will do a much better job of handling contractual issues.
Are wills public record in Virginia?
Once wills are filed, they are public record, but only after they've been filed with the clerk.
Do wills in Virginia have to be notarized?
No. The best and most ironclad type of will is what's known as a self-proved will. This is a will signed by the person making the will and witnessed by two witnesses and a notary.. If notarized, the notary is merely attesting to the fact that they saw the witnesses sign the will in the presence of each other and the person making the will. It makes the will very difficult to contest, but it is possible to still have a will signed by the person making it and just the two witnesses.
Do wills have to be probated in Virginia?
Wills do not have to be probated in Virginia, unless there's property that would require probate, at which point you would probate the will. If a person dies without any assets whatsoever or all of their assets have beneficiary designations on them, then you would not have to probate a will even if it existed.