What a Will Does in Virginia
Many clients come to us knowing only that they "need a will." But do you know why you might need one and what they do? This guide will help you get a better handle on how wills work in Virginia so you can be in a better position to plan for your estate.
Probate versus Non-ProbateA will is an important tool. But it is important to realize that it is not the only one. Wills transfer what is called the "probate estate." However many people do not realize that they likely also have a "non-probate" estate that will transfer independently of the will.
This non-probate estate can include things like certain retirement accounts or property that is jointly titled with "right of survivorship." These kind of assets can transfer upon death independently of what the will says. Therefore it is a good idea to understand which of your assets will transfer in this manner and ensure that the transfer is in accordance with your wishes.
Testamentary Guardianship for ChildrenVirginia permits parents to name a "testamentary guardian" for their minor children. A guardian may be a "guardian of the estate" - or a person who manages the minor's estate/finances until the child reaches the age of majority. In addition, a guardian may be a "guardian of the person" of a child. This type of guardian would be responsible for the day-to-day care of the child (e.g. having the child live with him or her, etc.)
It is important to note, however, that per Virginia Code Section 64.2-1701, a "guardian of the person of a minor other than a parent is not entitled to custody of the person of the minor so long as either of the minor's parents is living and such parent is a fit and proper person to have custody of the minor." In other words, even if you name a guardian of the person of the child in your will, the other natural parent will be presumed to be the appropriate caretaker for the child.
Separate Writing for Tangible Personal Property"Tangible Personal Property" is the 'stuff' that you own. Examples would include furniture, baseball card collections, china collections, etc. Virginia provides for a specialized way of handling this kind of property in a will.
Essentially Virginia allows for a "separate writing" (i.e. separate from the will itself) where the testator (person making the will) that the person can use to transfer tangible personal property. In other words, you can simply make a written list of your tangible personal property and who it should go to. This list does not have to be prepared by an attorney and is separate from the will. Furthermore, this list can be revised, changed, etc. without having to re-execute or change the will itself. This allows for clients to easily make changes to their plans for tangible personal property as they acquire new property or change their estate plan.
Don't Forget about Powers of AttorneyWills only come into play when a person passes. However there can be situations where you may need help to manage your estate while you are still living. These situations can include circumstances where you are incapacitated due to age or health issues and unable to manage your affairs as a result. Powers of Attorney appoint persons to manage your affairs in the event you cannot. This can help clients avoid the necessity of expensive court proceedings to appoint guardians and conservators to manage your estate.