Estate Planning

Protecting Rights, Prosperity, and Peace of Mind

Contact

Estate Planning

The Law Office of Maria T Patente PLLC creates customized estate plans to protect wealth, prosperity, and peace of mind. An estate plan can literally be a life-saver in difficult times. For example, your estate plan can ensure that your medical insurance does not lapse when you are ill. Your estate plan should include provisions to make sure that you have an agent to act for you when you cannot act for yourself.

Estate Plan Review

It is wise to review your estate plan with an attorney when significant life-events occur. Some significant events include recently moving to Virginia, getting married or divorced or buying or selling real property. You should also consider updating your estate plan if you have children, survive the death of a loved one, or are affected by new tax laws.

Effect of Change of Domicile

The validity of a will is determined based on the laws of the state of domicile. Your domicile is that state where you reside with intention to remain permanently. Therefore, if you executed a will in a state prior to moving to Virginia, you should make sure your will is valid according to the Virginia requirements for a valid will. Similarly, if you chose executors who live out of state or move out of state, you should consider choosing a Virginia resident.

The Law Office of Maria T Patente provides estate planning services for individuals, married couples, and small-business owners. An overview of some services are provided below. Call for for an initial consultation to address your specific situation.

Drafting and Executing Wills

Capacity to Execute a Will

Virginia law favors the disposition of wealth at death according to a Last Will and Testament over the laws of intestacy. Therefore, the capacity required to make a will is less than the capacity required to enter into other contracts. For example, a person under a guardianship with no legal authority to enter into legal contracts may still have the capacity to make a valid will. Or, a person diagnosed with mental illness or dementia could still have capacity to make a will.

The capacity to make a will includes several parts. The person who makes the will (the testator) must be a legal adult. The testator must generally know the scope and nature of his or her assets. Also, the testator must know “the natural objects of his/her bounty”, which means relatives and heirs. Additionally, the testator must act without undue influence and intend to dispose of assets upon death.

The Importance of a Will

Most estate plans should include a Last Will and Testament even if other instruments such as trusts and “payable on death” accounts will distribute virtually all property at death without a probate. For some people, a valid will is especially important.

Drafting and executing a will is often more affordable than drafting and maintaining trusts. Similarly, some people would pay much less in probate taxes compared to paying a trustee. People with young children must select their guardian or conservator through a will. Further, people making specific bequests of personal property, for which there is no title, should execute a will to designate their chosen beneficiaries.

People with blended families, extended families, and non-traditional families should have a will to prevent any property from passing to a biological relatives who might not be their chosen beneficiaries. A well-drafted will always includes a “residuary clause” to make certain that all property not otherwise distributed passes to the designated residuary beneficiaries.

If you need to execute a new will or make changes to an existing will, call The Law Office of Maria T Patente PLLC to schedule a consultation and timely and properly execute this important instrument.

Drafting and Executing Codicils

Codicils are effective tools to make administrative changes to a Last Will and Testament, such as changing the executor.  Codicils are not appropriate for significant changes to the actual distribution of wealth.   Significant changes to a will should usually be made through a new will. Codicils must be executed with the same formalities as wills.

Drafting and Executing a Power of Attorney

A power of attorney is a legal instrument that enables an “agent”, who acts in a fiduciary capacity, to enter into legal agreements on behalf of the “Principal”.  The “Principal” is the person who grants legal authority, and the “agent” is the person who agrees to act for the principal.  

Durability

Since the passage of the Uniform Power of Attorney Act in Virginia, all powers of attorney drafted under Virginia law are durable unless expressly made non-durable. “Durability” means that the power of attorney remains in effect even after the principal becomes incapacitated.   This makes them essential tools to prevent the need for conservatorship proceedings.

When Power of Attorney Effective

The principal can decide when a power of attorney becomes effective. A “springing” power of attorney, “springs” into effect when specified conditions, which are described in the instrument, are satisfied. A principal may also choose to leave the instrument with the attorney in escrow until a specified time or event. The attorney can then deliver the document to the agent. Alternatively, the principal may choose to make the instrument effective immediately upon signing. The principal always retains the right to revoke a power of attorney as long as the principal has capacity.

Capacity

In order to execute a power of attorney, the principal must have full legal capacity to enter into a binding contract. This means the principal understands the nature and the consequences of the agreement.  Capacity requirements to execute a Power of Attorney are higher than those necessary to execute a will, a revocable trust, or an advanced medical directive.   If a person lacks the capacity to execute a power of attorney, then a conservatorship proceeding may be required to manage the legal affairs of the incapacitated individual.

Durable power of attorneys are effective and affordable ways to prevent guardianship and conservatorship proceedings in the event of incapacity. Further, the power of attorney provides the principal with the power to choose the agent and the terms. Therefore, a judge does not make the final decision about who cares for the incapacitated person or how they should care for him (or her). A principal has flexibility to decide the terms of the instrument and to provide guidance for the agent.

General and Limited Powers of Attorney

A power of attorney can be drafted such that people other than the principal have oversight over the agent. The instrument can be a general power of attorney that grants expansive authority to the agent or a limited power of attorney that grants authority to the agent over a specific matter, such as handling taxes, a business or real estate.

If you are in need of a power of attorney or need to revise an existing power of attorney, call to schedule an appointment to complete the process at your earliest convenience.

Advanced Medical Directives

Advanced Medical Directives (AMD) and Healthcare Power of Attorneys are legal instruments that enable a person to make decisions about future healthcare treatments. The principal also appoints a healthcare decision maker in the event of incapacity. In order to execute an Advanced Medical Directive, a person must have the capacity to make an informed decision regarding healthcare.   The Advanced Medical Directive takes effect when the principal lacks capacity to make an informed medical decision.

 An Advanced Medical Directive usually contains a “living will” section that expresses end of life instructions and a section that appoints an agent to make less critical healthcare decisions.   The instrument should be clearly and carefully drafted for medical professionals who may be working under acute emergency medical conditions.

 Ultimately, an Advanced Medical Directive cannot require a medical doctor to provide a medical treatment which is medically inappropriate.  However, if the agent or principal cannot reach an agreement about treatments with the care provider, the directive could require the doctor to transfer the patient to a different doctor who will comply.

Psychiatric Implications of an AMD

 An AMD can reduce the likelihood of an involuntary psychiatric hospitalization.  This is because the principal can authorize the agent to temporarily admit the principal into the a psychiatric facility for a period not to exceed ten days without a civil commitment proceeding.

The Advanced Medical Directive should provide instructions in the event that the principal terminates the Advanced Medical Directive while under an impairment. The AMD can be drafted to express acceptable treatments even over protest.  The AMD may also address other medical legal issues such as granting the agent authority to review medical records, enter the principal into clinical trials, and determine visitation.

The Virginia Advanced Medical Directive Registry

People can upload their Advanced Medical Directives into the Virginia Advanced Medical Directive Healthcare Registry. This provides notice to medical professionals about who to contact in an emergency and other instructions set forth in the AMD.

Contact the Law Office of Maria T. Patente PLLC to learn more and to include an Advanced Medical Directive in your estate plan.

Drafting and Funding Trust Instruments

The Law Office of Maria T. Patente PLLC provides services in trust drafting, funding, modification, trustee counseling and trustee services.  A trust is a written agreement between the “grantor”, the “trustee”, and the “beneficiaries”.  The Virginia Uniform Trust Code (VUTC) codifies the establishment, interpretation, administration of trusts and rights of the parties for trusts controlled by Virginia law. 

Trusts serve a variety of purposes

The flexibility of trusts makes them ideal instruments for a variety of grantor purposes. People use trusts to provide for the grantor and beneficiaries if the grantor becomes incapacitated. Trusts often contain provisions that protect assets from creditors and reduce federal estate taxes. People planning for the care of minors and disabled children frequently use trusts to distribute assets in a controlled manner over time. A pet owner can also provide for pets through a trust.

Trusts used to minimize probate

Trusts can simply probate. For example, through transferring real property into the trust, the titles to the property can pass to the beneficiary without probate after the death of the grantor. A trust that holds property in more than one jurisdiction provides an effective and efficient way to eliminate ancillary probates in different states.

Additionally, by passing most of the property through the trust the overall size of probate is reduced which may make an alternative to probate available to distribute the assets not held in trust. Furthermore, it can reduce the probate state and county fees. Usually probate costs around $0.10 per $100.

Types of trusts, generally

A trust may be either a “living trust”, also called an inter vivos trust, which is written and funded during the grantor’s lifetime or a “testamentary trust”, which is a trust included in the grantor’s will.  A living trust may be either a revocable trust or an  irrevocable trust.  The purpose of the trust dictates whether the trust must be a living trust or testamentary trust and whether it must be revocable or irrevocable.   Federal taxation and public benefit planning are two key factors which may dictate the type of trust required.

Trustee Responsibilities

Choosing a trustee is one of the most important aspects of trust planning. Trustee responsibilities include complying with the terms of the trust even when compliance is difficult. It may mean declining requests from the beneficiaries, initiating litigation, or making investment decisions. Consequently, the grantor must choose a trustee who is capable and trustworthy and plan a line of succession for the trust.

Additional provisions may create additional security to oversee that the trustee meets his/her obligations. For example, some trusts create provisions for a “trust protector” to have powers if certain events occur. This might mean overseeing the trustee, modifying the terms of the trust, or requiring a trustee to submit accountings to the grantor or beneficiaries.

Call The Law Office of Maria T. Patente PLLC to learn more about trusts and how they may help you achieve your estate planning goals.

Transfer on Death Assets

As part of the estate planning process, The Law Office of Maria T. Patente PLLC reviews assets titles and retitles property to include “payable on death” provisions.   Designating accounts as “payable on death” (POD)  can be an effective way to reduce probate costs or even avoid probate.  Virginia authorizes transfer on death provisions for motor vehicles and real property.

When considering the appropriateness of “payable on death” accounts,  a married person must consider whether he/she has designated adequate funds to equal or exceed the amount of the elective share due to the surviving spouse.  Otherwise, litigation is likely to occur and such POD accounts may be clawed-back into the probate estate by the estate administrator. A spouse cannot be disinherited through title changes or by naming people other than the spouse as beneficiaries through POD provisions.  

Married couples can waive elective share rights through marital agreements. To be enforceable, the agreement must be fair to both spouses and could depend on whether they both had legal counsel.

Title Transfers, Deeds, and Transfer on Death Deeds

The Law Office of Maria T. Patente PLLC provides services to transfer titles to people, business entities, and  trusts in accordance with your overall estate goals.  One should consider title transfers in the context of the overall strategy of the estate plan. This includes factors such as taxation and the elective share. People frequently pay more taxes on gifts made during life rather than at death. This is partly due to gift taxes due on gifts in excess of the annual exclusion established by the IRS. Also, the recipient usually pays a higher capital gains tax when selling assets received as gifts.

Estate planners use transfer on death deeds for several reasons. They may be used to eliminate or reduce the complexity of probate and taxes. Assets transferred at death usually have a “step up in basis”. Therefore, less capital gains taxes are owed upon sale of the property. Another favorable attribute is revocability. A grantor may revoke a transfer on death deed, but the grantor usually cannot revoke a deed as gift.

Elective Share Waivers

Elective Share Waivers created through marital agreements may be an effective tool for married couples under some circumstances. On the one hand, a waiver could assist a person in meeting eligibility requirements for public assistance. On the other hand,  one spouse could become completely disinherited and left in a bad financial situation. A complete plan for self-care and prosperity for the future should be in place prior to agreeing to such a waiver.   

If you are considering entering a marital agreement that waives your right to the elective share, call for a consultation with the Law Office of Maria T. Patente PLLC to learn if the waiver fits with your plan for aging and your intentions for your estate.

Business Succession Plans

The businesses that you built and in which you invested could play a significant part of your estate plan.  Perhaps the business will be continued by a family member, friend, or partner or perhaps the better plan is to consider selling your interest, the entire business, or some of the assets.  Under some circumstances, it may make sense to consider changing the entity structure or seeking a purchaser.  

The Law Office of Maria T. Patente PLLC will counsel you through your options and complete the work necessary to  capture the value of your life’s work for the prosperity of your future and your estate. 

Burial Directives and Burial Insurance Review

Burial directives are the clearest way to express your wishes for burial and to have them completed.  In the absence of a burial directive, decisions regarding burial and disposition of remains are left to the next-of-kin.   To reduce the likelihood of dispute at a tense time in the life of those who survive you, written burial directives can clarify any conflicting ideas that people have about your last wishes. 

Burial insurance and burial pre-payment may be included in your plan to assist your friends and family during their immediate experience of bereavement and emotional grief.  Your burial directives may express your wishes on how funds should be spent,  your wishes for the disposal of your remains, memorials, and services and may designate the person who you wish to be in charge.   The person selected should agree to this responsibility in the burial directive and have the legal document available for contracts with funeral homes.

Tax Planning

A comprehensive estate plan includes minimizing numerous taxes. These include federal estate taxes, generation skipping taxes, and capital gain taxes. Federal tax law includes several Tax Acts that have amended and modified each other for decades. The Secure Act has most recently changed the taxes due retirement accounts for most beneficiaries.

The current federal estate tax exclusion is $12.06 million per individual and $24.12 million per married couple.  Therefore, estates for most people who die in the near future will not owe federal estate tax. The current federal estate tax is 40%.  After 2025, the federal estate tax exclusion reverts back to $5.49 million absent new legislation to modify the tax exclusion. If you expect your estate to exceed the exclusion in 2025, you should include tax planning in your estate plan. That will preserve the greatest wealth for your beneficiaries.

Insurance Policy Review

The Law Office of Maria T. Patente PLLC works collaboratively with financial advisors about the usefulness of various insurance policies. While some policies meet financial needs, others can do more harm than good. For example, they may not pay enough for long-term care services but may disqualify you from Medicaid. 

As the price of long-term care continues to increase, more people are becoming dependent upon some form of public assistance for long-term care services.  Learn about Medicaid planning and the consequences of insurance products before you buy a policy. Call for a consultation for elder law services with The Law Office of Maria T. Patente PLLC.

DISCLAIMER: Content on this website is provided for informational, educational, and marketing purposes only, and does not constitute legal advice. If you seek legal advice on a specific situation, you should contact an attorney.

Estate Planning
Estate Planning