A Last Will and Testament, often simply referred to as a Will, is a legal document that allows you to communicate your wishes for after your death. These wishes include who should receive what assets of yours, who should be in charge of administering your assets and estate, what should be done with your body (burial or cremation), and who should any minor children live with.
The person who establishes a Will is called the Testator (male) or the Testatrix (female). The person who receives your assets is called your Beneficiary. The person who you appoint to care for your minor children is called the Guardian. The person that you appoint to be in charge to carry out all of your wishes is your Executor (male) or Executrix (female). In Virginia, your Executor/Executrix must be a Virginia resident or you must have a Virginia resident that serves with your Executor/Executrix.
A Last Will and Testament is not legally binding until you have died. Prior to your death, so long as you are competent, you may amend or change your Will at any time and as often as you like. You can have an amendment to you Will prepared, which is called a Codicil, or you can have a new Will prepared that takes that place of your old Will.
In order to sign a valid Will, you must be over the age of 18 years and of sound mind (which means that you must be competent). Also, you must not be under any duress to sign your Will. This means that no one can be forcing or coercing you to enter into the Will. Finally, you must understand the nature of your assets and who you are leaving them to. A Will must also be signed by two witnesses and a Notary Public in order to be valid.
Like other Estate Planning documents, a Last Will and Testament can be as simple or as complicated as you want it to be, depending upon your needs. You may decide to leave everything that you own to your only child and appoint her to be your Executrix. Or, you may decide to distribute your assets to several different people in different percentages. You may want to appoint two or more persons to be the Executors. Whatever your situation, you may always want to consider naming alternate Beneficiaries, Executors, and Guardians, just in case that those you have nominated cannot/will not serve.
There are many benefits to preparing a Last Will and Testament.
– YOU decide who receives your assets after your death and in what shares, no one else. This avoids any confusion upon your death and hopefully any fighting amongst your heirs.
– YOU decide who is in charge of administering your estate after your death. This avoids two children disagreeing over who should handle everything.
– YOU decide who your minor children should reside with, not a court.
– YOU decide whether you should be buried or cremated or even have your body donated to science.
– YOU can decide whether or not you wish to make a gift to a charity.
Life everything else, Wills are not perfect for every situation. A Will only covers the assets that are in your name alone. Jointly owned assets, those with beneficiary designations (such as life insurance), and those promised to others by written agreement (such as in a Partnership Agreement), are generally not covered by a Will. Also, a Will does not protect you in the event of your incapacity, as a Will has no effect until after your death. Perhaps most importantly, a Will is not designed to avoid the court process of Probate, which can be very complicated, time consuming, and expensive.
However, it is certainly still better to have a Last Will and Testament that to die without anything in place. If you do not have a Will or any other Estate Planning document when you die, you are considered to have died Intestate. By doing so, you have given up the right to make the decisions about how your assets are to be distributed, who should be in charge, and who your minor children should reside with. If you die Intestate, Virginia law will apply to the distribution of your estate, which may be far from what you would have wanted. The Executor who is picked may be the first person that makes it to the courthouse, and is probably the last person that you would have wanted. (The Executor of your estate is entitled to a fee for his/her services, usually up to 5% of the value of your estate).
It is important that you consult with an experienced Estate Planning Attorney to assist you in the preparation of your Last Will and Testament. As with all of your Estate Planning documents, it is imperative that the people closest to you know what you have done and where to find the paperwork when the time comes. Once you have done so, make sure that you discuss with then your decisions and make sure that they know how to reach your attorney upon your death. Your attorney can answer all of their questions and help them through that difficult time. If we can assist you in the preparation of your Last Will and Testament or if you just have questions about Estate Planning, please contact us.