|
|
|
|
ESTATE PLANNING AND ASSET PROTECTION
Bert van Gils and
Kate Teachout both provide personal, empathetic and insightful estate
planning to help assure that family property is passed to the intended
recipients and protected from lawsuits and unnecessary taxation.
Through the appropriate and judicious use of wills, trusts and,  at times, certain business models such as a family limited partnership, a family’s objectives can be achieved and its assets protected. More valuable than the protection of property is the care and protection for minor children in the event of accidents and unforeseen illness.
Even those with seemingly modest means have an estate —and several strategies to choose from to ensure assets are distributed according to specific desires in a timely fashion. One size does not fit all. The right strategy depends on your individual circumstances and having an attorney who takes time to listen and truly care. There are many times that a living trust will achieve the objectives desired and a will, by itself, would not be adequate or even wise. We believe that every client has worked hard for what they have and a good attorney should be mindful and respectful of that fact. Included with the expertise of drafting estate documents is the expertise of getting to know, and wanting to know, the client and his or her family. Time should be taken to obtain a firm knowledge of the client’s estate and goals and concerns. There are often many issues and concerns of which the client is not immediately aware. A client’s needs and goals must be understood. The attorney should then make the various estate tools at the client’s disposal, and the reasons for using each, understandable. The most typical estate planning tools include the following:
A Will
A will is a legal document appointing and directing an executor to dispose of your assets as you direct provided that you are of sound mind and at least eighteen years old (in Virginia) at the time you make your will. The first step in the process is thoughtful consideration of who this executor should be and a substitute executor should also be provided in the event the first chosen executor is not available at the time the will is probated. (Often husbands and wives appoint each other as executor and naming a reliable substitute is critical). Wills do not affect the passing of many types of assets, such as those owned jointly or those with survivorship designations such as life insurance policies and retirement savings accounts.
A Trust
A trust is a private agreement between the trust maker and the party designated to hold the trust assets (the Trustee) and handle them according to the terms of the trust without judicial supervision (probate). There are a large variety of trusts, each suited for a different purpose. The most popular trust is the revocable living trust which many use instead of a will; however, a “pour over” will should be used to ensure that any assets not in the trust at the time of death will be quickly placed into the trust. The probate process would then affect only those assets not in the trust and the process would be quick and simple with only one beneficiary (the trust).
Financial Power of Attorney
People should not only plan for their eventual death but also possible incapacity, even if it is temporary. There should be a trustworthy party who is legally able to conduct one’s affairs in the event of incapacity. Otherwise, judicial intervention may have to be sought to appoint a conservator and this process can become expensive and contentious.
Advance Medical Directive
This is the document which is colloquially known as a “living will”. It provides for the cessation of life-prolonging procedures if one is diagnosed with a “terminal condition” or is determined to be in a “persistent vegetative state” where the application of life-prolonging procedures would serve only to artificially prolong the dying process. Although the Virginia Code has designated certain “form language” and hospitals and care facilities have forms, this is a personal decision which should be customized to fit one’s values, religious beliefs and circumstances.
Appointment of a Health Care Agent
This document empowers another person to make decisions about medical treatment when the patient can not speak for him or herself. With the continuing advancement of medical technology, a living will by itself is inadequate. The person chosen to speak for the patient in this document will have access to medical records and the treatment providers and will be able to convey decisions to the treatment providers when the patient can not.
Probate
Probate is a judicially supervised process to oversee the payment of debts and taxes and the distribution of assets according to the directions of a will. Probate in Virginia for smaller and simpler estates is not complex. For other estates, however, the accounting can be more complicated and the process, especially in a time of grief, can be intimidating and confusing for many. Kate Teachout is familiar with the process in Virginia and comfortable working with probate clerks and the Commissioners of Accounts in various counties.
|
|
|