Author: Matthew Reinaker

Blending Families, Blending Assets: Estate Planning Tips

Written by Matthew Reinaker on February 28, 2023. Posted in Estate Planning.

Make life easier for your blended family by creating an estate plan that considers your new unique dynamics.

Blended families bring together individuals from different backgrounds to create a new, dynamic, and loving unit. Celebrating and embracing each other’s unique qualities and working towards a stable and loving family environment is critical to a successful start. A blended family is a marriage where both spouses bring children from previous relationships.

Blended families cope with many challenges—keeping up with busy schedules, maintaining inclusivity, and working through grief that may arise with the new family dynamics. Blended families must also work through how they will merge finances, blend assets and debts and what their comprehensive estate plan will look like while building a new family.

In many cases, a will already exists, but it is usually outdated and not enough to protect your new spouse and biological children from being disinherited if you pass away. Avoid this common scenario by having an estate plan before you remarry.

Blended family gathers outside for a party.

Estate Planning Tips for Blended Families

Communicate Openly

Good communication is critical to any successful relationship, and it’s essential when blending families. Not only are you working through communication within your new family unit, but each spouse likely has communication involving their previous family structures, especially if the couple brings in children from their previous relationship.

Communication should start even before marriage. It is essential to talk about debts and assets and decide if a prenuptial agreement is a good fit for your situation. In addition to discussing monetary issues, it is also important to walk through scenarios involving children in the case of incapacitation and death. The system that needs to be put in place can be complex because of the number of people who may be involved.

If your blended family involves adult children, it is significant to communicate with them, especially if you have decided to change any of their roles. One example is having an adult child who is your agent for your Medical POA and changing that designation to your new spouse after marriage. There are cases where new spouses shut out children from medical decisions, and this change could cause upset. Being transparent is the best path forward, and you can avoid surprises when they are least expected.

Consider a Revocable Living Trust

A revocable living trust is an estate planning tool that involves moving your assets into a trust managed by a trustee. A trust goes into effect immediately and protects your assets and privacy. A revocable living trust might be a good option for families where many people need care. Remarriage brings a new spouse and stepchildren into the picture. This can complicate an estate plan if there are biological children present. For many, there is a balance between ensuring your new spouse will be cared for if you pass away and a desire to keep certain assets for your direct heirs.

Some people assume that if they leave everything to their new spouse, that person will ensure the inheritance and assets will be fairly passed down to the children from each marriage fairly and equitably. This is not always the case. Suppose you make your spouse the only beneficiary. In that case, they have complete control of the inheritance and have no legal obligation to make sure your children or grandchildren will inherit anything from your estate. In this case, a trustee overseeing a revocable living trust can ensure that all parties are cared for in the way you intended.

Know Your State Laws

Unlike biological or adopted children, stepchildren do not have an automatic inheritance in a blended family unless specified in your will and estate plan. Knowing your state laws regarding common law, community property, and order of succession in probate can help you and your spouse have the best plan to ensure all of your children and family members are taken care of. An estate plan should be revisited every 3-5 years unless a major life event occurs.

Blending families can be a beautiful and exciting process. It can also be complex and complicated; a simple will won’t cut it. Taking time to consider all the options and practicing open communication is the best way to ensure that your estate plan accounts for all new family members.

Mobile Estate Planning Made Easy

The process of getting a legitimate will in place for you and your family can be overwhelming, confusing, and costly, but it doesn’t have to be! At Assurest, we offer simple, affordable solutions for your legal needs and make the process easy by coming to you for the conversation—meeting you in your home or, if you prefer, virtually or over the phone.

Serving the Greater Richmond area and beyond, our experienced and trustworthy professionals simplify the process using clear, understandable language free of legal jargon and provide flat-rate packages, so you’re never surprised by the bill. Contact us today and rest assured that your affairs are in order and your loved ones are protected.

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5 Reasons to Update Your Estate Plan

Written by Matthew Reinaker on February 28, 2023. Posted in Estate Planning.

Do you have a blended family? These five key life events including remarriage might mean it’s time to revisit your estate planning documents.

Having another chance to fall in love is a gift worth celebrating. For many, remarriage after a divorce or the spouse’s death can be the start to a whole new chapter in life. Considering how merging two lives into one will impact your financial situation and estate plan is essential.

There is a delicate balance between embracing the new and knowing what is fair when merging the assets and lives of two established families. Other key life events that affect families, like death, divorce, the birth of a child, and significant moves are other examples of when an estate plan should be revisited and updated.

5 Reasons to Review and Update Your Estate Plan

1. Remarriage

Getting remarried is an exciting time to put the past behind and look forward to brighter days. This is a great time to look at your comprehensive estate plan and decide who will be your beneficiary, who will make your medical decisions if you become incapacitated, and who will be the executor of your estate. Additionally, you want to ensure your spouse is taken care of, including changing any designations on insurance policies or retirement accounts from your former spouse to your new spouse or another beneficiary. A common pitfall in new marriages is getting wrapped up in the excitement of a wedding and not updating the estate plan to ensure your new spouse—and any biological children—are protected.

2. Birth of a Child

If you have children or are expecting the birth of a child, you will need to update your estate plan with directives on who will care for your children if you become incapacitated or die. Assigning a guardian is essential so that you do not risk the court deciding for you. Additionally, your estate plan can lay out how your child will be financially supported and can name them as beneficiaries.

3. Divorce or Death in the Family

Dealing with divorce or death in the family can be heartbreaking, but keeping your estate plan updated to reflect these key life events can allow you to redirect your assets. If you are divorced, changing the beneficiaries on your accounts, like life insurance or any retirement accounts, is essential. You should also review your power of attorney and update your attorney-in-fact, or the person designated to act on behalf of another person. If it is outdated, your former spouse will legally assume the decision-making powers if you become incapacitated. Depending on how things ended between the two of you, it may not be your ideal choice.

If one of your beneficiaries dies, they will no longer be able to accept the inheritance, so you should remove them from your estate plan.

4. Moving to a New State

Estate planning laws are not national and can vary from state to state. You should review your estate plan if you move to a new state to ensure it complies with current laws and regulations. Some states are common law states, and others are community property states, and this can affect how assets and debts are handled in the state you reside.

You should know if the new state will accept your advanced healthcare directives, living will, or medical POA. If there are no laws in the state governing those legal documents, then you risk medical professionals not accepting the documents in an emergency. The terminology might also differ, like “agent” vs “proxy.” To protect yourself from this, go through all the documents in your estate plan and update any that do not meet new state requirements and terminology.

5. Time Lapse of 3+ Years

Reviewing your estate plan at regular intervals, in addition to key life events, will help ensure that your legacy is passed on following your wishes. It also ensures that your beneficiaries receive their benefits without the headache of guessing what you would have wanted. It is common practice to review and update your estate plan every 3-5 years unless a major life event occurs.

The good news is you have already done the leg work of thinking through the structure of your estate plan—the documents are already gathered, and the language already exists. Keeping up with periodic updates will only help make your estate plan more transparent to those you love.

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Father and son sitting on front steps of the house reading about the importance of having a will

Plan Your Future Now: Understand the Importance of a Will

Written by Matthew Reinaker on February 27, 2023. Posted in Last Will & Testament.

Wills are not just for the elderly or wealthy; it’s a tool to protect everyday people. Learn about the structure of a will and why you need one.

We hear it all the time–do I really need a will? The short answer is, yes, you need a will! We get it, this task is probably not at the top of your to-do list. You have to set aside time to gather essential documents, rehash old family wounds, or contemplate what life might be like when you are gone. For many, that is uncomfortable. But proper, proactive planning allows you to easily protect your assets and explain how you want your family to manage your estate after you pass away.

Here is how wills are typically structured and why having a will is critical.

How is a Will Structured?

A will is not only for naming assets. It serves a more significant role in creating a structure that will make the probate process easier for the family member or friend tasked with closing out your estate and distributing the assets left.

Appointment of an executor: An executor is responsible for carrying out the instructions in the will and distributing the assets to the beneficiaries.
Beneficiaries: A will typically specifies who will receive the assets and property and in what proportions. This can include family members, friends, and charitable organizations.
Guardianship of minor children: If the testator has children who are minors, a will can name a guardian to care for them if both parents pass away.
Funeral and burial arrangements: A will may include instructions regarding the testator’s wishes for their funeral, burial, or cremation.
Debts and taxes: A will can provide instructions for how the testator’s debts and taxes should be paid from the estate.
Personal property: A will can specify how the testator’s personal property, such as jewelry, art, or other sentimental items, should be distributed.

Do I Need a Will if I Don’t Have a Ton of Assets?

Some people think they don’t need a will because they don’t own a significant number of assets. The reality is that you own more than you think, and when you die, everything that you have in your name that you pay money to or own will need to be managed and closed out through a probate process.

All of your assets (big or small) and your debts will be combined to make up your estate and will go through the probate process. For most people, this is unavoidable, but it can be made easier with a will and by naming an executor so the court doesn’t decide for you.

Here are common assets that can be included in your will:

Checking and Savings Accounts: If you do not have a joint owner on your account or a named beneficiary, it is important to name an executor. This allows them to pay your creditors, you can save them a lot of work by naming them in your will than having the court decide.
Vehicles: Your vehicle is considered an asset and personal property.
Furniture and Personal Belongings: Everything you own must be given away, sold or thrown away. If you have sentimental items, photos, critical documents, electronics, digital files, or family heirlooms, this is an excellent place to list out who will receive each item.
Settlements: If you are in the middle of a settlement, there might be a right to proceed with your claim that will pass to your estate.

What Happens if I Die Without a Will?

Dying without a will is called dying “intestate”. The consequences of dying without a will vary depending on the laws of the state in which the person lived and the deceased’s owned property. In most cases, you will have no control over the distribution of your assets, and the probate process can be long and costly, which can subtract from what is left of your assets and put unnecessary stress and financial strain on your loved ones.

Dying without a will is a surefire way to add a sting to the throes of grief. Clear communication can help ease tensions and allow your family to focus on moving forward instead of trying to piece together a puzzle with missing parts. With proper planning, this situation can be avoided. A will allows the testator to leave nothing to the imagination and lay out all the information to make the job easier for the executor and family members.

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5 Types of Power of Attorney (POA): What You Should Know

Written by Matthew Reinaker on February 1, 2023. Posted in Power of Attorney.

Learn about the five most common types of power of attorney, what rights are granted, limitations, and things to consider when setting up your POA.

We all imagine ourselves living long and fulfilling lives, but life is not always predictable. While many of us hope for the best, we often forget to plan for the worst. The best laid plans have contingencies and layers of protection for situations that can’t be planned for. One important layer of protection is a power of attorney.

This document can be designed to assist you (or a loved one) during any stage of life—whether you are preparing to have your baby at the hospital and submitting a medical POA on file just in case, or you’re caring for a sibling who was just diagnosed with a terminal illness and they need your help managing their finances while they undergo treatment.

A Power of Attorney is when a person, known as a “principal,” gives financial, medical, or legal power to a selected person, known as an “agent,” to act on the principal’s behalf in certain situations and under specific circumstances. These powers include managing bank accounts, paying bills, investing, or buying and selling property. There are many types of power of attorney, and selecting the correct one for your specific needs and estate plan can help protect you and your estate. Let’s discuss the five types of power of attorney and which may best fit your individual estate planning needs.

5 Types of Power of Attorney

1. General Power of Attorney

A general power of attorney allows your authorized agent to act for you in all situations permitted by local law. A POA includes legal, financial, business, and health-related matters. A power of attorney typically ends when the principal becomes incapacitated—the purpose of a POA is to give someone else the authority to make decisions and take actions on the principal’s behalf when they can do so themselves. When the principal becomes incapacitated and unable to make decisions for themselves, they are no longer able to oversee the actions of their agent effectively, and the POA may be terminated by the court. A general POA can be durable or non-durable, depending on your needs. A non-durable POA can allow for the following rights:

Managing the principal’s financial affairs, such as paying bills, managing bank accounts, and investing assets
Hiring professionals, including medical help and consenting to medical treatments
Buying, selling, or renting real estate on the principal’s behalf
Purchasing insurance policies
Operating the principal’s business
Representing the principal in court, settle any outstanding financial or legal claims
Filing taxes and claiming government benefits

A general POA gives your agent a wide range of power over your affairs, but there are still some things they can’t do. Here are some examples of limitations on an agent acting within a POA:

The agent can not change your will or estate plan
The agent can not transfer responsibility to another agent
The agent has a fiduciary duty and can not act outside the principal’s best interest
The agent can not use the principal’s assets or money as their own
The agent can not take compensation beyond what is outlined in the POA

2. Special Power of Attorney

A special power of attorney, also called a limited power of attorney, grants limited powers under specific, clearly laid-out circumstances. This type of POA is used when power needs to be granted, but the scope of that power is specific to a particular situation. An example of this POA would be if you need to travel outside the country for business and you are selling your home and need someone to sign documents on your behalf. The rights, scope, and limitations of the special power of attorney are laid out in the document, and no action can be taken outside what is specified.

3. Durable Power of Attorney

A durable power of attorney survives incapacitation. In Virginia, a POA is considered a durable POA unless otherwise stated. A durable POA is active even when the principal becomes incapacitated. This avoids the process of the court appointing a conservator. This is the only POA that operates in this manner. With other POAs, incapacitation means the POA is revoked, and the court will get involved unless other estate structures are in place to mitigate this process. A durable power of attorney can grant you permission to:

Act on your parents’ behalf on any matter
Sign legal documents
Advising on healthcare decisions
Making financial and business decisions

The limitations on an agent acting within a durable POA are the same as with a general POA. Here is a specific example of a common circumstance that arises with the limitations of a durable POA:

An agent can not transfer responsibility to another agent. In cases where you are caring for another person who is incapacitated and you are unable to fulfill your duties under the durable POA. The situation would go to court for a guardian or conservator to be appointed

Mother and daughter sitting on a bench taking a photo together.

4. Springing Power of Attorney

A springing power of attorney, also called a conditional POA, is a valid and legal document on the day it is signed but becomes active when a specific event or condition occurs. As the name suggests, the power of attorney “springs” into effect when the outlined contingency is satisfied. This is a common selection by many people planning their estate because it allows them to keep control but has a plan in place for “just in case” situations.

The drawback to a springing POA is that there would need to be a consensus that the “springing” event has occurred, which can be challenging to prove. One example is when a springing POA is in place for incapacity, and the principal is diagnosed with dementia. They may experience what medical professionals call “sundowning,” where they are fully coherent and able to make decisions in the morning, and by evening they are not. Here are a few limitations and drawbacks to a springing POA:

Family members might have different opinions on if the “springing” event occurred
Certification from a doctor can cause delays
Just because your agent has the springing POA doesn’t mean they will act on it, especially if there isn’t an agreement regarding incapacitation.
Not all financial institutions will accept a springing POA unless they can certify it was signed by a medical professional.

Determining incapacity can be a complex and subjective process, and it may be challenging to agree on whether the principal is incapacitated. This can lead to disputes and legal challenges and cause delays in getting help which can impact the principal and their family. Delays can result in improper and sub-par care.

A power of attorney can only become active if the principal and agent both can sign the documents. If there is any question of incapacity, then the POA will not be valid. This distinction is important because, many times, people wait until it is too late to get a POA in place. If this is a POA that the principal is interested in then it is best to sign it early instead of when decline is taking place.

5. Medical Power of Attorney

Watching your child turn 18 is a momentous occasion for any parent, marking the transition from childhood to adulthood and the beginning of a new phase of life. Many parents are helping their adult children obtain a medical POA. As kids head off to college, the reality is that parents no longer have the legal authority to make decisions for their adult children. Many families file a medical power of attorney in case of emergency so the parents can still direct medical decisions at the hospital if anything happens. Here are some things to consider when planning your medical POA:

Have a conversation with your agent about your wishes and how you want your medical decisions made.
If your views change, be sure to have another conversation and update your medical POA on file.
Be specific with the medical decisions–do you want your agent to make the same medical decisions if you are pregnant? If a decision arises where the question of permanency comes into play, can they make a permanent decision, or would you prefer for a guardian chosen by the court to step in?
File a copy of your medical POA with your medical records at our doctor’s office or the medical facility where you will be treated.

When you die, any power of attorney will be null and void, and your estate will default to the other structures you have in place. That could be a will that passes through probate or a living trust operating according to the trust’s instructions. If your estate plan is centered around a will, then the executor of your estate will take over. You can name your executor in your will or allow the court to appoint an executor during the probate process.

A Power of Attorney is an important legal document to include in any estate plan. The agent you select will take over medical care, financial management, and other vital decisions if you cannot do so. Understanding the different types of Power of Attorney, the rights granted, and the limitations will help you make the best decision for your estate.

Mobile Estate Planning Made Easy

Serving clients throughout Virginia, our experienced and trustworthy professionals simplify the process using clear, understandable language free of legal jargon and provide flat-rate packages, so you’re never surprised by the bill. Contact us today and rest assured that your affairs are in order and your loved ones are protected.

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Revocable Living Trust vs. Last Will and Testament

Written by Matthew Reinaker on February 1, 2023. Posted in Last Will & Testament, Legal Trusts.

Learn the advantages and disadvantages between a last will and testament and a revocable living trust and which one might be right for you.

We are faced with options day in and day out. Some are simple: Would you like cream and sugar with your coffee? Others are more complex, like what type of estate you will set up to protect your assets, who will care for your children in the event that you pass away, and what your medical care will look like at the end of your life.

A 2020 Gallup Poll discovered that only 46% of Americans have a will directing how they want their money and estate handled after their death. Tomorrow isn’t promised, so planning for the future now is the best way to care for your loved ones when you are no longer here. The first step in planning is knowing the tools available to you. Estate planning tools like a last will and testament and a revocable living trust each serve a specific purpose. Follow along to learn about wills and trusts–discover the advantages and disadvantages of each.

What is a Last Will and Testament?

A last will and testament functions as a set of instructions- think of your will as a step-by-step guide laying out your wishes, your chosen beneficiaries, and steps to manage the closing of your estate. Your last will and testament might designate who will inherit your vehicle, who will care for your children or pets, and who will be the executor of your will, ensuring that all of your wishes are executed in the way you laid out.

What is a Revocable Living Trust?

A revocable living trust is an estate planning tool that involves moving your assets into a trust managed by a trustee. A trust goes into effect immediately and protects your assets and privacy.

Advantages of a Revocable Living Trust vs. Last Will and Testament

Advantages of a Revocable Living Trust:

Immediate implementation: A trust goes into effect immediately after it is funded and signed.
Avoidance of probate: Assets held in a trust do not go through probate, which is the legal process of transferring assets from the deceased to their beneficiaries. Keeping assets in a trust can save time and money and help keep the distribution private.
Control over assets: A trust can provide more control over how and when assets are distributed to beneficiaries. A revocable living trust can be particularly useful for individuals with minor children or beneficiaries with special needs.
Asset protection: A trust can protect assets from creditors, lawsuits, and other claims if specific parameters are set around the beneficiary’s duties before assets are distributed.
Legacy: A trust can create a sense of legacy and reflect values important to the Guarantor.

Advantages of a Last Will and Testament:

Simplicity: Wills are generally simpler and less expensive to create and administer than trusts.
Flexibility: Wills can be changed or revoked anytime, whereas trusts are more difficult to change once they have been established.
Accessibility: A will is easily accessible and an excellent first step in working towards a comprehensive estate plan. This tool allows immediate naming of guardians for children and pets, designates who assets will be distributed, and lays out all final wishes and arrangements.

Disadvantages of a Revocable Living Trust vs. Last Will and Testament

Disadvantages of a Revocable Living Trust:

Cost: Setting up a trust can be more expensive than a will and typically requires the services of an attorney. Additionally, ongoing expenses may be associated with maintaining the trust, such as accounting and legal fees.
Complexity: Trusts can be complex legal instruments, and it may be difficult for some individuals to understand the terms and conditions of the trust fully.
Limited flexibility: Trusts are often inflexible and difficult to change once established. This can be a problem if the grantor’s circumstances or the needs of the beneficiaries change over time.

Disadvantages of a Last Will and Testament:

Probate: One of the main disadvantages of a will is that it typically goes through probate, which is the legal process of transferring assets from the deceased to their beneficiaries. Probate can be time-consuming and expensive, and it can also make the distribution of assets a matter of public record.
Limited control: A will only takes effect after the principal’s death, which means the principal has limited control over how and when their assets are distributed to beneficiaries, especially if an executor was not selected to carry out the last will and testament.

The Bottom Line: Revocable Living Trust vs. Last Will and Testament

In general, revocable living trusts are more useful when individuals want more control over their assets and how it is distributed after death. Choosing a revocable living trust over a last will and testament can avoid the costly and time-consuming probate process.

Wills are more useful for individuals who want to keep things simple and straightforward and those with fewer assets to distribute. A will may also be better if the guarantor’s debts outweigh their assets. In cases with outstanding debts, it can be beneficial to go through the probate process because creditors have a limited time to seek the money they are owed. If the assets are in a trust, there is unlimited time for creditors to request the debts be settled.

Families might be better positioned in certain situations to have the probate process play out so all debts are accounted for. In many cases, clients will have both a will and a trust as part of their estate plan since a will functions as a directive and a trust functions as a layer of asset protection.

Mobile Estate Planning Made Easy

Serving clients throughout Virginia, our experienced and trustworthy professionals simplify the process using clear, understandable language free of legal jargon and provide flat-rate packages, so you’re never surprised by the bill. Contact us today and rest assured that your affairs are in order and your loved ones are protected.

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What is a Transfer-on-Death Designation?

Written by Matthew Reinaker on January 31, 2023. Posted in Estate Planning, Last Will & Testament.

Avoid the costly and time-consuming probate process by using the Transfer-on-Death Designation

Most people want to avoid probate court, and for good reason! Anyone responsible for being an Executor during the probate process knows how time-consuming, grueling, and expensive it can be. The good news is probate can be avoided with proper planning and using available estate planning tools like a Transfer-on-Death (TOD) or Payable-on-Death (POD) designation. If you want your loved ones to avoid probate, and your estate is simple and straightforward, then a TOD or POD might be a more viable solution.

What is a Transfer-on-Death Designation?

A transfer-on-death designation allows a principal to transfer the ownership of the property to a named beneficiary without going through the probate process. This designation is legally recognized in Virginia when a Virginia Transfer on Death Deed is filed. For a transfer-on-death designation to be valid, it must be filed before the principal’s death. A TOD is a helpful estate planning tool when the principal’s primary assets are real estate or bank accounts, and the principal only has a few other assets or debts. There are a few specific TOD designations:

Transfer-on-Death Deeds for Real Estate
Transfer-on-Death Registration for Vehicles
Payable-on-Death Designations for Bank Accounts
Transfer-on-Death Registration for Securities

In Virginia, a transfer-on-death (TOD) designation allows for the transfer of ownership of certain assets, such as bank accounts, brokerage accounts, and real estate, to a designated beneficiary outside of probate court. However, the current owner retains the right to manage the assets as they see fit during their lifetime. This includes the ability to mortgage, sell, or revoke the beneficiary designation without notifying or obtaining approval from the beneficiary. While the beneficiary may be aware of the TOD designation, they do not have any legal rights to the property until the death of the current owner. They cannot make any changes to the property or sell it on their own. The principal does not have to notify the beneficiary that they were named as the beneficiary. The principal can keep the TOD private until they revoke it or pass away.

It’s important to note that if there are any outstanding loans on the property, a TOD designation does not affect the creditors’ rights concerning those loans. Additionally, a TOD designation does not give the beneficiary’s creditors any rights to the property while the current owner is still alive.

Older women sitting outside with her computer while she writes her transfer-on-death designation with a pen.

Pros: Using a Transfer-on-Death Designation

One of the benefits of using a TOD is that it is not limited to property like land or real estate. It can also apply to personal property like jewelry, cars, and recreational vehicles. If the principal has a straightforward estate, they can avoid probate by using a TOD instead of a last will and testament. Another benefit of a Transfer on Death Deed is that putting a beneficiaries name on our deed ahead of time will mean they will own the property immediately after your death.

The primary benefit of having a valid Virginia TOD deed is that the beneficiary can avoid the hassle and legal expense of probate after death. The cost associated with getting a TOD in place is much more affordable than the costs associated with setting up a revocable living trust.

However, since the current owner retains the right to revoke the TOD designation at any time, it is considered an “incomplete gift” under federal gift tax laws. This means the owner is not required to pay gift taxes on the property transfer.

Cons: Using a Transfer-on-Death Designation

One drawback to a Transfer on Death designation is that it does not allow for continued beneficiaries like a trust would. The property will be given to the beneficiaries immediately upon the passing of the principal, and they can do with it what they want. If the property is in a trust, there are rules and stipulations around how the property is used, if it can be sold, or if it should continue to be passed down.

A TOD designation does not give the beneficiary’s creditors any rights to the property while the current owner is still alive. However, once the property is transferred to the beneficiary, it can be subject to property tax and liens, and the beneficiaries creditors can come after the property if they are owed money. It does not have the protection that a revocable living trust can provide.

How Does a Transfer-on-Death Help the Probate Process?

For many people, a Transfer-on-Death Designation is an affordable estate planning tool. A transfer-on-death designation can streamline the probate process by allowing assets to pass directly to the listed beneficiary without needing to go through probate. In addition, there is no requirement to notify your beneficiary that there is a TOD in place and ownership of the property will be transferred to them upon death, and in many cases, it is simple as providing proof of identification and a valid death certificate to complete the transfer.

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Estate Planning Tips for Avoiding Probate

Written by Matthew Reinaker on January 30, 2023. Posted in Estate Planning.

The probate process can be expensive and time-consuming. Learn 4 ways you can structure your assets to keep your estate (and loved ones) out of probate court.

What Is Probate?

Probate is the court process of transferring your assets after your death to your beneficiaries. Under the supervision of a judge, the probate court will validate your last will and testament, approve your executor, and ensure your assets are distributed properly and that any applicable taxes are paid.

Many people think that a last will and testament will protect them from the probate process but that is not true—all wills go through probate court. And while there are many reasons one might want to avoid this process, there are also ways to avoid this lengthy and costly process. Here are 4 reasons to avoid probate and proven tips from an estate planning attorney to help you circumvent this process (that can sometimes take years to resolve).

Family meets to discuss estate planning for parents.

4 Reasons To Avoid Probate

Assets will be frozen. Frozen assets might throw a wrench into delicate or time-sensitive situations where access to funds is necessary for important financial decisions. One example is planning and paying for your funeral. If you did not set funds aside and there is no transfer on death (TOD) designation or joint ownership on a bank account your loved ones will not be able to access funds to pay for costs associated with your funeral.

The probate process can be slow. The probate process can take anywhere from six months to more than two years. Certain benchmarks have to be met before the next step is started: The executor must be approved, debts must be settled, taxes paid, beneficiaries named, and assets distributed. If there are any objections this can stall the process and your estate will incur additional attorney fees.

The process can be expensive. It is not uncommon for attorney costs, executor fees, filing fees, and administrative fees to cost nearly 10% of the gross estate. This can add up quickly if the probate process is drawn out or challenged. If you want to avoid giving a major chunk of change to the government after your death, avoiding a lengthy probate process is your best bet.

Probate proceedings become public records. If you are a private person you might want to keep that privacy after your death. Probate court becomes a public record and all of the details surrounding your assets and debts will be shared.

4 Ways to Prevent Your Estate From Probate

Establish a Revocable Living Trust: Assets in a trust do not get frozen, but the same can not be said for a will. A last will and testament is a great document to lay out your wishes but it does very little to protect your loved ones from the arduous probate process. To avoid this costly avenue, consider setting up a revocable living trust where your assets are held in a trust account where you can function as the trustee until your death. A revocable trust will shift to an irrevocable trust after your death and your estate will be taxed and then distributed to your heirs. In most states, the process and documents of transferring the trust are private and none of the information is publicly filed. Unlike probate court, you, your estate, and your heirs will be able to maintain a level of privacy. The only way to protect your estate from the cost of probating a will is to create a living trust.

Designate Beneficiaries: Designating a Beneficiary on your bank accounts, retirement accounts, annuities, and life insurance policies is an easy task with minimal paperwork. Many companies require the paperwork as part of setting up your account. This designation is unique to each asset so if someone chooses this route they will have to file paperwork with each entity holding the asset. After your death, the beneficiary will receive the assets as an inheritance. One important note is that the beneficiary designation will override anything laid out in a last will and testament.

Hold Property Jointly: If you are married there is a good chance any property acquired during your marriage is already jointly held with your spouse. Upon your death, your spouse will become the sole owner of the property. It is still a good idea to have larger assets like property, land, fine art, and family heirlooms in a trust and not rely solely on jointly-held property. If something happens to both parties at the same time, like a car accident, then the jointly held property is still in a trust and will avoid probate as it passes to your heirs.

Gifting Your Estate Before Death: One option to avoid probate court is to give portions of your estate before your death. One of the pros of going this route is that you get to experience the joy and excitement of giving your family gifts and being able to see them receive the gift. Without a trust, your estate could end up in probate court, and everything from money and family heirlooms to property could be put through the probate process which is both expensive and time-consuming.

Mobile Estate Planning Made Easy

Serving the Greater Richmond area and beyond, our experienced and trustworthy professionals simplify the process using clear, understandable language free of legal jargon and provide flat-rate packages, so you’re never surprised by the bill. Contact us today and rest assured that your affairs are in order and your loved ones are protected.

How to Appoint an Executor For Your Will

Written by Matthew Reinaker on January 30, 2023. Posted in Estate Planning, Last Will & Testament.

The executor of your estate is responsible for distributing your assets, paying your debtors, and ensuring your beneficiaries receive their inheritance.

Have you ever heard the Winston Churchill quote, “He who fails to plan, plans to fail?” Failing to plan for the right person or entity to be an executor of your will after your death can lead to a long, arduous, and costly process. To best serve your estate and your beneficiaries you should appoint an executor for your will.

Young woman speaking to her grandmother about appointing an executor for her estate.

The one thing you don’t want your loved one to inherit is a headache! Appointing an executor is a detail that should not be overlooked in the process of planning a will. If you decide to not appoint an executor, the courts will appoint one on your behalf—this can be expensive and stall the process of estate settlement.

The executor’s role carries a lot of responsibility in protecting, managing, and distributing the estate assets to the named beneficiaries. In other words, you want to designate an executor you trust who is capable of intently carrying out your wishes. Thus, selecting an executor for your estate can be a difficult decision. Take time to consider a handful of candidates before deciding on one that can carry out all of the duties necessary to protect your estate.

What is an Executor?

An executor of a will is an individual selected by you, also known as the testator, to carry out the wishes laid out in your will. They will manage the estate settlement until the assets are distributed and the estate is closed. In some cases, the executor may be a corporate entity or bank, especially if there is a trust in place. But for many, the executor is someone close to the testator like a spouse, child, or close family member. You want the process of settling your estate to be as quick, cost-effective, and painless as possible.

What Responsibilities Does an Executor Have?

Executors can be subject to probate court oversight and carry many responsibilities that range from maintaining the assets while working through the estate settlement process to notifying government agencies of the testator’s passing. Here is a short list of some responsibilities that you can expect will fall under the executor’s duties:

File the will with the appropriate probate court and be available during the probate process
Notify all beneficiaries or interested parties listed in the will
Identify all of the testator’s assets
Maintain property and assets until distributed
Pay off all debtors
Pay all state and federal taxes
Distribute or transfer all remaining funds, assets, or property to the beneficiaries named in the will
Close or cancel any accounts like social security, credit cards, or subscriptions
Close the estate

How to Choose the Right Executor

Often, selecting the right person can be one of the toughest tasks in the estate planning process. This selection can be emotional and carries a lot of weight. You want to select an executor for your will who is available immediately and can manage the responsibility of starting the probate process even while dealing with their grief. The executor of an estate should be responsible, trusted, and not have any outstanding feuds with any of your beneficiaries.

The executor should be firm and direct about protecting all assets until the process is finished. Select an executor for your will who will not go against the interests of the beneficiaries or act against the provisions of the will. This process can be complex and time-consuming. Appointing someone responsible and diligent who understands that they can face legal and civil ramifications if they do not fulfill all of their duties is critical.

Appointing the Executor You Selected

If you decided on an executor to include in your will, congratulations! This is one of the hardest decisions in this process. Naming an executor is as simple as putting their name as the chosen executor in your will and giving the necessary information to the executor regarding where to find your will after you pass away. It is not required to share all of the details laid out in the will with the executor—this can stay confidential. In the event that you pass away, the named executor will file a petition with the probate court to be confirmed as the executor and start the process of closing the estate and distributing the assets—just as you laid out in your last will and testament.

Mobile Estate Planning Made Easy

What is a Holographic Will?

Written by Matthew Reinaker on January 30, 2023. Posted in Estate Planning, Last Will & Testament.

Should you DIY your own will and does it hold up in court? Here are answers to frequently asked questions and the pros and cons of holographic wills.

Maybe you’re planning an international vacation and you want to make sure that in the event something happens to you or your spouse, your children will be well cared for by the person of your choice. Maybe you were born into the Bezos family and want to secure your multibillion-dollar inheritance. Maybe you won the lottery and want to make sure that when you pass, a hefty sum of money goes to every animal shelter in the Northern Hemisphere. Whatever your final wishes may be, if you’ve ever wondered how to write your own last will and testament, look no further. Here’s how it works.

Writing Your Own Will: A How-To

Step 1: Take out a piece of paper and a pen or pencil. Yes, actual pen and paper.

Step 2: Write your will. It should look something like this: “I, [your name], leave my entire estate to my wife, Jane Smith.” Or, “I, Elizabeth Client, leave my estate equally to my children, Anna, Barry, and Chris.” Personalize this with your name and the names of your beneficiaries.

Step 3: Sign your will.

Voila! You (probably) have a valid will. For bonus points, write “Will” at the top so your family knows what they’re looking at. Not necessary, but a nice touch. If that feels too easy, you might have some questions right now. Let’s answer a few of them.

Couple sits down together to write their last will and testament.

What is a holographic will?

Writing out your own will and signing it yourself is called a holographic will and is typically considered valid in the state of Virginia. While this method is almost effortless and doesn’t cost you anything, it may not be the best or safest option. Aside from the important fact that the will was written by a layperson and not a lawyer or your holographic will contains unclear language or spurs uncertainty, this cheap and easy method could cost your loved ones more than just money after you’re gone.

Does a holographic will hold up in court?

A holographic will, or a will written by the testator, is typically considered valid in the state of Virginia, even without witnesses or a notary.

What if important details are missed in a holographic will?

You might also be wondering, “What about my minor children? Who’s going to watch them?” Or, “What about charitable gifts I want to make?” or “What about an Executor? Don’t I need one of those?” Or even more generally, “…isn’t there supposed to be more stuff in here?”

These are all great questions and all of this should 100% be included in a good will. The key word there is good will. This post is about writing a will. Every client is unique and every situation is a little different. So although a one-sentence will might be a valid legal document in Virginia, it’s probably not an adequate expression of your final wishes, nor can you guarantee they will be carried out.

Writing a Holographic Will: The Bottom Line

Sure you can go online and print out your own will pretty cheaply, just like you can scrawl out your last wishes in crayon on a dirty napkin if you like. To recap, the pros of a holographic will are:

A holographic will is free
A holographic will is easy
A holographic will can be made anywhere, including your local Waffle House
A holographic will has legal standing in Virginia
You can use your favorite color crayon in your holographic will

But the old adage “You get what you pay for” does ring true in this scenario when you consider the risks of a holographic will:

Holographic wills often omit important information that adversely affects your loved ones after you die
Holographic wills are not written by an experienced lawyer, leaving room for uncertainty, ambiguity, and potential inaccuracies, making your will prime for disputes, invalidity, or being contested by family members
Holographic wills often do not have witnesses to their creation, giving no proof that the testator wrote it
Holographic wills could be illegible because they are handwritten, adding more room for error

In short, your DIY will may have been free, easy, and even serve as a “valid” will. But probably what you want more than a piece of paper that says “will” on it, is the peace of mind of knowing you’re providing an ironclad plan for your loved ones after you’re gone. More than just a document, you want a plan that provides guidance and comfort to your family, so they know what your wishes are and so they can honor you by upholding them. Your loved ones are going to be stressed and overwhelmed and grieving at your loss—and one of the last new memories they have of you could either be finding a crumpled piece of paper stuffed in the back of a drawer with your hastily-written instructions on it, or finding a clear plan, crafted with the help of a professional and stored among your important documents, showing that you took the time to provide guidance and direction to your loved ones at a time when they needed it most.

It is important to ensure that your or your loved one’s final wishes are respected, and in certain situations, a holographic will may be the only option, but given the potential concerns of ambiguity, errors, and critical omissions, a formal will prepared with an estate lawyer’s advice will be far superior to—and protect you more than—a holographic will.

Mobile Estate Planning Made Easy

The process of getting a legitimate will in place for you and your family can be overwhelming, confusing, and costly, but it doesn’t have to be! At Assurest, we offer simple, affordable solutions for your legal needs and make the process easy by coming to you for the conversation—meeting you in your home or, if you prefer, virtually or over the phone.

Serving Richmond, Virginia and beyond, our experienced and trustworthy professionals simplify the process using clear, understandable language free of legal jargon and provide flat-rate packages, so you’re never surprised by the bill. Contact us today and rest assured that your affairs are in order and your loved ones are protected.

What Makes a Will Invalid?

Written by Matthew Reinaker on January 30, 2023. Posted in Last Will & Testament.

There are a number of reasons a will could be considered invalid. Here’s how to identify and contest an invalid will in Virginia.

One of the most important documents you will ever write is your last will and testament; yet many, to their own detriment, erroneously believe that they don’t need a will. These common misconceptions include not owning “many” assets, not being “old enough,” or just assuming their closest relatives are aware of and will carry out their wishes. And contrary to popular belief, holographic wills—or handwritten wills by the testator, or person making the will—may not hold up in court.

A man is sitting at table looking out the window and is stressed about his invalid will.

In a perfect world, everyone would band together when a loved one dies and be aligned on carrying out their last wishes. In reality, though, not having a valid will can create a ripple effect of family disputes that end up in probate court, costing time, money, and irreparable damage to relationships within families with the courts making the final decisions. It is not uncommon for family members who feel slighted by a loved one’s last will and testament, who didn’t get what they believe to be their fair share of the estate, to attempt to have a will declared invalid by contesting it in court.

Most people who end up in a lengthy, costly court battle contesting the will of a recently-deceased loved one (or being on the receiving end of a disgruntled family member contesting a will they may not have been included in) didn’t consider that this could be an outcome for them. Unfortunately, it’s not until it’s too late that they realize the gravity and dire consequences of not having the proper, legally-standing documentation in place much sooner.

Here’s everything you need to know about what makes a will invalid and how to contest an invalid will.

When is a Will Invalid?

A will may be declared invalid if it does not follow state law requirements. Additionally, a will that is too ambiguous, contains missing information or inaccuracies, or appears written under suspicious circumstances, someone may try to contest or challenge it, having it declared invalid in probate court.

Some common reasons a will may be declared invalid include:

The will has been forged
The deceased lacked testamentary capacity, or the mental capacity to coherently make decisions and write a will
The deceased was a victim of undue influence or was manipulated or pressured when writing their will
The deceased was a victim of elderly abuse or duress, threatened with violence, abuse, or other unethical, coercive action
The will was not signed, witnessed, or notarized appropriately
The deceased did not approve the contents of their will
The person who created the will can be proven to have been mentally ill, incapacitated, or otherwise lacked the capacity to make a will

How to Contest an Invalid Will

While laws vary by state, to contest a will in Virginia, you must:

Confirm that you are an “interested person” by legal definition. An interested person means someone who is entitled to receive property under the will or under the intestate laws of Virginia.
Determine whether or not you have grounds to contest the will based on the aforementioned reasons a will could be deemed invalid.
Submit a bill explaining your interest and reason for challenging the will per Virginia Code section 64-1.88.

If you believe a will is invalid, acting quickly is critical as the time limit for contesting a will is typically one year from the date the will is probated (or filed in the clerk of court’s office). If you are involved in a will contest or have questions about the validity of a will, seeking trusted specialized legal counsel can help simplify the process, ensure important deadlines are not missed, and give you peace of mind.

Mobile Estate Planning Made Easy

The process of getting a legitimate will in place for you and your family can be overwhelming, confusing, and costly, but it doesn’t have to be! At Assurest, we offer simple, affordable solutions for your legal needs and make the process easy by coming to you for the conversation—meeting you in your home or, if you prefer, virtually or over the phone.

Serving Richmond, Virginia and beyond, our experienced and trustworthy professionals simplify the process using clear, understandable language free of legal jargon and provide flat-rate packages, so you’re never surprised by the bill. Contact us today and rest assured that your affairs are in order and your loved ones are protected.