Last Will & Testament 3 - Asurest | Estate Planning

How to Appoint an Executor For Your Will

Written by Asurest 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.

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What is a Holographic Will?

Written by Asurest 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 Asurest 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.