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You Have Finally Executed Your Will! Now What?

Posted by attorney Scott Golightly

Congratulations! You have completed the important task of preparing and executing a last will and testament. This guide attempts to answer several of the frequently asked questions clients have after the will has been signed.

Where should I keep my will? Where you keep your will is not of great importance as long as it is a safe place. What is most important is that you do not hide your will. Several persons should know the will’s location so that it can be produced without any delay when it is needed. Virginia law provides that a bank may permit a decedent’s spouse, next of kin, and certain others to enter a decedent’s safe deposit box to look for a will and to remove it for delivery to the appropriate clerk of court. How long does my will last? There is no set life-span for a will. As a general rule, a standard will (not involving any tax planning) should be reviewed every three to five years to ensure it continues to reflect your wishes in light of possible changes in the law since its execution. If you move to another state, or if there is a significant change in your assets or beneficiaries, your will should be reviewed immediately. Is it safe for me to make changes to my will? No. You should not attempt to change your will yourself, even though the change seems to be a “simple" one. Unfortunately, there have been many cases proving that (i) a layperson cannot reasonably expect to duplicate the work of a competent estate lawyer, and (ii) when a will is not drawn correctly, the decedent’s family often suffers for it (for example, delay or excess cost in the settlement of the estate, or the loss of a part or all of an intended inheritance). How can I locate a lawyer who is knowledgeable in the law of wills and estates? A good source for an informed recommendation of a lawyer who is knowledgeable in matters of wills and estates is the trust department of your bank. Also, persons may contact lawyers who are members of the Trusts and Estates Section of the Virginia State Bar. Should I change my life insurance beneficiaries? Many people have provided for their life insurance to be payable to his spouse or, in the event that the spouse predeceases him, to his children (or descendants of deceased children). If the secondary beneficiaries are under eighteen, their entitlement to insurance proceeds can create a problem. That is, in Virginia, persons under eighteen cannot receive directly or control insurance proceeds. So, in the event a minor is ultimately named as a beneficiary of an insurance policy, the courts will appoint a guardian for the minor to control the proceeds. This person could be a complete stranger, or it could be a family member who may be given limited discretion regarding how the funds are used. To eliminate these problems, and also provide for complete flexibility in the disposition of the insurance proceeds, you may have already created (or can create) in your will a family trust or a trust for minor beneficiaries. Then, you may specify that, if your spouse predeceases you, the proceeds will be payable either (i) “to my estate" or (ii) “to the trustee named in my will." Either of these beneficiary designations should eliminate the need for a guardianship of property. The use of the proper designation will also enable you to integrate your insurance proceeds into the estate plan created by your will and thereby dispose of these proceeds in the same way as your other property. It is important to note that the use of the “estate" designation may require that the insurance proceeds will now have to be probated along with other probate assets in your estate. This may cause (i) higher probate taxes, (ii) your appointed executor’s fee to be higher because your estate will be larger, and (iii) it can result in a greater exposure of these insurance proceeds to the claims of your creditors. Although probate taxes in Virginia are relatively low and the process itself is pretty simple, these considerations must be carefully considered. You should discuss these concerns with a qualified estate lawyer. Does Virginia law require that a will be probated? No. Although it is a crime to fraudulently conceal a will, there is no law that requires a will to be probated. Moreover, in the case of married persons (where most of the property is often held jointly with survivorship), the estate of the first to die can often be settled (consistently with the terms of the will) faster and at a lower cost if the estate is not settled through the probate process. This may also be true, in a smaller number of cases, upon the death of the second to die of a married couple, or upon the death of a single person. In any specific case, however, the final decision about the need to utilize the probate process, or any portion of it, will depend upon the nature and extent of the assets in that particular estate. The only person who can be relied upon to provide the correct answer to this question will be an attorney who is knowledgeable in the law of wills and estates.

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