» Wills and Trusts

What are some reasons I should have a will?

  • If you die intestate, or without leaving a will, the law may have to decide who will inherit your property and how much each person will inherit. For example, in Virginia under the laws of intestate succession, one-third of one’s property goes to a surviving spouse and two-thirds goes to surviving children.
  • Even if you are married and own everything in joint tenancy with your spouse, you may want to have a will in case you and your wife die together. A will allows you to control how and to whom your assets will pass to others upon your death.
  • Even if you have no property and have designated all your beneficiaries on your life insurance and tax deferred accounts, you may need a will because your beneficiaries may not outlive you.
  • You are a sole parent of a minor child or children. If you are a widow or widower you may wish to designate who will take care of your minor child and the property left for the child’s benefit. If you are divorced from the other parent of the child, you may not what him/her to hold your property for the benefit of your minor child.
  • You own real estate in a state outside the state in which you reside or claim as your domicile.
  • You have a family member whom you wish to disinherit or need to disinherit to preserve medical benefits.

Does a will avoid probate?

No. when you die, any property that is not held in joint tenancy with right of survivorship with another will be subject to probate whether or not you have a will. During probate proceedings, the court will supervise the distribution of property to those entitled to receive it in accordance with your will, or in accordance with the law of intestate succession in the absence of a will. Probate may require the periodic submission of property inventories and the payment of court costs and bond fees.

What is a trust?

A trust is a legal entity, somewhat like a corporation, that assumes ownership of real estate and money transferred into the name of the trust. Property owned by the trust upon the death of the person who created the trust (the grantor) passes to the beneficiaries named in the trust document. The transfer of this property is not subject to probate.

What is an Inter Vivos Trust

An inter vivos trust is one established during your lifetime as opposed upon your death. In an inter vivos trust, you usually designate yourself (or your spouse and yourself) as the initial trustee(s) and a trusted family member or friend (often the one you designate as an executor under your will) as a successor trustee. As in a will, you designate the beneficiaries who will receive your property following your death. Typically, an inter vivos trust is revocable.

What are some reasons to have an inter vivos trust?

Assuming you decide to have a will, you should consider establishing an inter vivos trust if one or more of the following situations apply to you:

  • You have property of substantial value and wish to avoid the expense and delay inherent in probate proceedings and having a court supervise the distribution of your property following your death.
  • Your property is not owned in joint tenancy with another. For example, you are unmarried, or you are divorced, or you have remarried and wish to preserved property you brought into the marriage for your children from an earlier marriage.
  • You own real estate in a state outside the state in which you reside or claim as your domicile.
  • You own a business.
  • You have no one you wish to name to administer your estate (or whom you trust) and wish to designate a corporate trustee (for example, a bank and trust company) to serve as your executor and trustee in handling the distribution of your property.
  • You have beneficiaries who are minors, immature, disabled, and/or elderly who are not able to manage financial assets, and you want to ensure that the financial assets passing to them will be properly managed and used for their welfare.
  • An inter vivos trust can accomplish other goals related to tax planning, asset preservation, and creditor protection.

How is an inter vivos trust funded?

Once an inter vivos trust is drafted and signed, to be effective, it must be funded by transferring the title of real estate, financial accounts, and other property into the name of the trust.