Last Will and Testament

A Will is traditionally used to state the rights of others over your property, effective upon your death.  A Will performs many important functions, such as:

  • Provides for the disposition of your property among the persons or entities that you choose.
  • Appoints an executor, or personal representative of your choice, to manage your affairs and settle your estate after your passing.
  • Nominates a guardian to provide for the care of your minor children.
  • Establishes a trust for the benefit of your children, in order to stipulate the terms and conditions under which your children may receive the funds.
  • Appoint a trustee to manage funds that you leave for the benefit of your children, which may be your adult child.

If you don't have a Will . . .

If you don’t have a valid Will in place at the time of your death, you are said to die “intestate”.  Each state has statutes that address this problem.  Those statutes are generally a best guess by the state legislators as to how you would have disposed of your property if you had a Will.  If the disposition of your estate is controlled by the laws of intestacy, there is the possibility that your estate will be distributed to persons you may not know or have had little contact with.  In Virginia, the following persons will take your estate in the absence of a Will (Note: list is abbreviated):

  1. All to spouse, unless the decedent leaves children or descendants who are not descendants of the surviving spouse, in which case 2/3 to those surviving children or descendants of the decedent, and 1/3 to the surviving spouse
  2. If no surviving spouse, then all to children or to their descendants
  3. If no surviving spouse or children, then all to mother and father, or to the survivor of them
  4. If none, then to brothers and sisters, or to their descendants

If you die intestate, a court appointed and supervised administrator will manage your estate.  This will increase the cost, complexity and time needed to settle the estate.

More importantly, though, you will forfeit the opportunity to nominate a guardian.  In that event, another family member or friend may petition the court for guardianship. This person may not be the one that you would have preferred for this important task.

You will also forfeit the opportunity to establish a trust for the benefit of your minor children or young adults, which can stipulate the terms and conditions under which the child has access to those funds.  The alternative is a custodial trust, under the Virginia Uniform Transfers to Minors Act (UTMA), or similar act of another state.  The problem, however, is that under the UTMA, as well as those acts of other states, the funds are transferred to the beneficiary generally upon reaching either age 18 or 21.

 

“Thus says the Lord, ‘Set your house in order, for you shall die’”.
2 Kings 20:1

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