Estate Planning in Virginia

“The depth and breadth of information provided in a well-organized format make this book an indispensable reference for every Virginia lawyer who counsels clients with regard to any aspect of estate planning. The authors are experienced and respected Virginia estate planning lawyers, whose advice and commentary reflect their expertise. Your malpractice carrier will be happy to know that you own this resource!”
– Marie McKenney Tavernini, Editor

Creating estate plans is increasingly a challenge. You need practical, real-world information on planning, drafting documents, and administering estates—something you can put to use every day. This essential reference guides practitioners through the entire estate planning process from initial client contact to finalizing a complete estate plan that accomplishes the client’s goals. It clearly lays out estate planning options, their benefits and limitations, and the federal tax consequences to best implement the client’s wishes. It also includes 61 ready-to-use electronic forms to create estate plans for your clients.

This 2022 edition of Estate Planning in Virginia addresses changes to Virginia law that present new planning opportunities and challenges. The Uniform Transfer to Minors Act now permits the custodian of property to hold this until the minor reaches the age of 25. Virginia also passed the Uniform Fiduciary Income and Principal Act which replaces the prior uniform act and gives more flexibility to trustees.

Editor

Tyler P. Brown, Hunton & Williams / Richmond

Tyler P. Brown, editor of this book, is a partner with Hunton & Williams LLP in Richmond, and is chair of the firm’s Bankruptcy, Restructuring & Creditors’ Rights Practice Group. Tyler has substantial experience handling complex bankruptcy matters from both the creditor and the debtor sides. He regularly represents creditors committees and handles loan workouts, lender liability claims, contract disputes, landlord-tenant disputes and other commercial litigation at the trial and appellate levels. Mr. Brown provides transactional and lending advice to commercial, consumer and mortgage lenders, private equity firms and hedge funds, and public and private companies. He has extensive litigation experience with adversary proceedings and contested matters in U.S. Bankruptcy Court and commercial litigation in Virginia state and federal courts.

Mr. Brown received his J.D. in 1987 from Washington & Lee School of Law, where he served as Editor-in-Chief of the Washington & Lee Law Review. Following law school, he clerked for the Honorable Richard H. Poff, Justice of the Supreme Court of Virginia, before joining Hunton & Williams in 1988. Mr. Brown is a Fellow in the American College of Bankruptcy, is a member of the Board of Directors of the Greater Richmond Bar Foundation, previously served as a member of the Board of Governors of the Bankruptcy Section of the Virginia State Bar, and is a past President of the Bar Association of the City of Richmond.

Authors

Harold E. Bell, Stokes Timms Bell & Vaiden, P.C. / Norfolk

Harold E. Bell, author of Chapter 4, is a member of Stokes Timms Bell & Vaiden, P.C. in Norfolk. Mr. Bell received a B.S. from Wofford College in 1975, an M.B.A. from Old Dominion University in 1978, and a J.D. from the T. C. Williams School of Law, University of Richmond, where he served as a member of the University of Richmond Law Review, in 1984. Mr. Bell’s practice focuses on corporate and business law, shareholder agreements and disputes, employment law/compensation arrangements, commercial transactions, mergers and acquisitions, commercial real property (acquisitions, dispositions, leases, finance), and estate planning. He is member of the Virginia State Bar and the Norfolk and Portsmouth Bar Associations.

Paul S. Bliley, Jr., Williams Mullen / Richmond

Mr. Bliley, author of Chapter 1, is a partner at Williams Mullen’s Richmond office. Chip Bliley’s practice is focused on bankruptcy, creditor’s rights, problem loans, foreclosures, workouts, collateral liquidation and commercial litigation.

Mr. Bliley has dealt with a broad range of creditor’s rights and bankruptcy issues. He has extensive experience in asset sales and acquisitions, protection of secured positions, negotiation of reorganization plans, foreclosures and other issues that frequently arise in the debtor/creditor relationship. He has also represented lending institutions in a broad variety of real estate title issues, including title insurance claims, mechanic’s lien coverage issues and related issues. He has represented banks, lending institutions, consumer finance companies, mortgage companies and mortgage servicers routinely in connection with business and consumer bankruptcies and financial restructures.

Most recently Mr. Bliley has been engaged in the representation of numerous landlords in various bankruptcy cases, enforcing and protecting the landlords’ rights in bankruptcy. Mr. Bliley also has extensive experience in complex motions for relief from the stay in bankruptcy representing both secured lenders and landlords in bankruptcy.

He is a member of the Bankruptcy Section of the Richmond Bar Association and has serviced as its chairman. He also speaks often to various groups on creditor’s rights issues, including foreclosure and eviction issues. Mr. Bliley is the author to The Enforcement of Deeds of Trust Section in the publication of the Virginia State Bar entitled “Enforcement of Liens and Judgments in Virginia.” Mr. Bliley is listed among Virginia Business magazine’s “Legal Elite,” The Best Lawyers in America for Banking Law and Bankruptcy and Creditor-Debtor Rights Law and Virginia Super Lawyers magazine for Banking, and is recognized as a leading bankruptcy attorney in the U.S. by Chambers USA.

His professional affiliations include membership in the Virginia State Bar, the Virginia Bar Association, the American Bar Association and the Richmond Bar Association. He is admitted to practice before the U.S. Supreme Court, the Virginia Supreme Court, the U.S. Court of Appeals for the Fourth Circuit, and all Bankruptcy Courts in the Eastern and Western Districts of Virginia.

A 1974 graduate of the University of Virginia School of Law, Mr. Bliley received his bachelor’s degree in business administration (accounting) with high honors from the University of Notre Dame in 1971. In addition, Martindale Hubbell has rated Mr. Bliley an AV attorney, its highest rating available.

Sarah Beckett Boehm, McGuireWoods LLP / Richmond

Sarah B. Boehm, co-author of Chapter 2, is a senior counsel at McGuireWoods LLP in Richmond. Her practice focuses on representing corporate debtors, lenders, and creditors in a variety of business Chapter 11 cases. Sarah also has experience representing creditors in matters involving Chapter 5 causes of action, automatic stay, and discharge injunction violations. She received her J.D. from the University of Richmond and joined the firm after clerking for the Honorable Blackwell N. Shelley and the Honorable Douglas O. Tice, Jr., both from the U.S. Bankruptcy Court for the Eastern District of Virginia. She is the Chair of the Bankruptcy Section of the Virginia State Bar and the Chair-Elect of the Bankruptcy Section of the Bar Association of the City of Richmond.

Thomas E. duB. “Ted” Fauls, Troutman Sanders LLP / Richmond

Thomas E. duB. “Ted” Fauls, author of Chapter 5, is a partner with Troutman Sanders LLP and is the managing partner of the Richmond office. Mr. Fauls’ primary practice areas are banking, commercial lending, workout, and bankruptcy and creditors’ rights. He earned a B.A. from William and Mary in 1983 and a law degree from the Marshall-Wythe School of Law at William & Mary in 1986.

Mr. Fauls is a member of the Virginia Bar Association’s Business Bankruptcy and Business Law Sections as well as the American Bar Association’s Subcommittee on Secured Creditors of the Business Bankruptcy Committee and Subcommittee on Secured Transactions of the Uniform Commercial Code Committee. His professional recognitions include Best Lawyers’ 2012 Richmond Securitization and Structured Finance Law Lawyer of the Year; Best Lawyers in America in Banking Law (2008-present); Financial Services Regulation Law (2008-present); Securitization & Structured Finance Law (2008-Present); and Consumer Law, 2014; and Virginia Super Lawyer in Securities & Corporate Finance Law (2006, 2008) and in Banking Law (2009-2015). He has achieved Martindale-Hubbell’s highest rating for legal ability and ethical standards.

He is a member of the Virginia State Bar, the Virginia Bar Association, and the American Bar Association.

Leon P. Ferrance, Roanoke

Leon P. Ferrance, author of Chapter 6, earned a B.A. from the University of Rhode Island in 1972 and a J.D. from Washington and Lee University in 1976. He worked for the Roanoke Commonwealth’s Attorney’s Office from 1976 until 1979 and has been in private practice since 1979. Mr. Ferrance is a member of the American Collectors Association, the National Health Care Collectors Association, and the National List of Attorneys. He is a frequent speaker and author on debt collection issues for Virginia CLE and local civic groups.

Mr. Ferrance is the author of numerous articles on creditor rights, was a keynote speaker at the National Healthcare Collectors Association regarding Medicare Compliance and Fraud, a lecturer on the Fair Debt Collection Act, and has lectured on several occasions for the Virginia State Bar’s continuing legal education courses. He has authored for the Virginia State Bar Enforcement of Judgment Liens on Attachments and Collection of Debt and has lectured on several occasions on issues involving landlord-tenant issues and mechanic’s liens. Mr. Ferrance’s active practice encompasses much of southwest Virginia in the areas of debt collection, construction litigation, and divorce.

Douglas M. Foley, McGuireWoods LLP / Norfolk

Douglas M. Foley, author of Chapter 2, is a partner in the Norfolk office of McGuireWoods LLP. Mr. Foley’s practice consists primarily of bankruptcy, creditors’ rights, and commercial litigation. He is admitted to practice before all Virginia and North Carolina courts, the United States Supreme Court, the United States Court of Appeals for the Fourth Circuit, the United States Court of Appeals for the Federal Circuit, and the United States Court of Federal Claims. Mr. Foley earned a B.A., cum laude, from Mary Washington College and a J.D., cum laude, from George Mason University School of Law. He is a member of the Virginia State Bar and the North Carolina State Bar.

Mr. Foley has substantial experience representing large and small creditors and debtors in a variety of business Chapter 11 proceedings. He has had significant involvement in many of the largest Chapter 11 cases filed in the Eastern District of Virginia, including Workflow Management Inc., Circuit City Stores Inc., Movie Gallery Inc., Rowe Furniture Inc., US Airways Group, Inc., AMF Bowling Worldwide, Inc., Best Products Company, Inc., Heilig-Meyers Company, Trak Auto Corporation, and FasMart Convenience Stores.

In 2001, he became certified in business bankruptcy law by the American Board of Certification Standards Committee, an affiliate of the American Bankruptcy Institute. He focuses his practice on all aspects of insolvency and debtor-creditor issues and has spoken at various bankruptcy bar and trade association meetings on bankruptcy topics.

Mr. Foley also served as chairperson of McGuireWoods’ Restructuring and Insolvency Department from September 2006 through August 2012. In 2011, Mr. Foley was inducted into the American College of Bankruptcy (Class XXII).

He is also a past chairperson of the Virginia State Bar Bankruptcy Law Section Board of Governors.

Mr. Foley is a past president of the Tidewater Bankruptcy Bar Association and is a past member of The Virginia Bar Association Bankruptcy Law Section Council. In 2003, he was named one of Virginia’s “Legal Elite” in the field of bankruptcy and creditors’ rights by Virginia Business magazine and was named a Virginia “Super Lawyer” by Law & Politics, 2006-2009, Corporate Counsel Edition. He was also named one of the “Best Lawyers in America” by Woodward and White, 2005-2010.

Dion W. Hayes, McGuireWoods LLP / Richmond

Dion W. Hayes, co-author of Chapter 9, is a partner in the Richmond office of McGuireWoods LLP. Mr. Hayes received his B.A. from the University of Virginia and his J.D. from the William and Mary School of Law. Since 1992, he has focused his practice on insolvency law and financial restructuring, including bankruptcy, out-of-court workouts, distressed asset acquisitions and recapitalizations, and related litigation. He is experienced in representing corporate debtors, official and unofficial committees of creditors or equity holders, asset acquirers, post-confirmation plan administrators, liquidating trustees, indenture trustees, senior lenders, bondholders, and other stakeholders, in bankruptcy courts and other courts throughout the United States. He has recently appeared in bankruptcy courts and other federal courts in Delaware, Florida, New York, Texas, and Virginia. He also has substantial cross-border insolvency experience.

Mr. Hayes has also been selected for inclusion in The Best Lawyers in America (Bankruptcy and Creditor/Debtor Rights), Virginia Super Lawyers (Bankruptcy & Creditor/Debtor Rights, Banking, Business Litigation), and Virginia’s Legal Elite (Bankruptcy). He is admitted to the bars of Maryland, New York, Virginia, and Washington, D.C.

In the area of Ponzi scheme cases, he has recently represented a major bank, litigation target, and plan sponsor in the Rothstein, Rosenfeldt, & Adler, P.L. chapter 11 case in the Southern District of Florida and in numerous related litigations in state and federal courts in South Florida.

Steven L. Higgs, Steven L. Higgs, P.C. / Roanoke

Steven L. Higgs, author of Chapter 11, is the principal of Steven L. Higgs, P.C., in Roanoke. He is certified in Creditors’ Rights and in Consumer Bankruptcy Law by the American Board of Certification. His areas of practice include representing creditors in bankruptcy cases, creditors’ rights, civil litigation, and commercial real estate. Mr. Higgs earned a B.A. from Washington and Lee University in 1980 and a J.D. in 1983 from the T.C. Williams School of Law, University of Richmond. He is a frequent speaker for Virginia CLE and is a contributing author of four Virginia Lawyers Practice Deskbooks: Bankruptcy Practice in Virginia (3d ed. 2012), Debt Collection for Virginia Lawyers—A Systematic Approach (6th ed. 2015), Enforcement of Liens and Judgments in Virginia (7th ed. 2015), and The Virginia Lawyer—A Deskbook for Practitioners (5th ed. 2015). Mr. Higgs is the author or co-author of more than 100 articles, seminar outlines, and book chapters on bankruptcy law, creditors’ rights law, legal ethics, and real estate foreclosures. He is a past president of the Roanoke Bar Association and a member of the American Bar Association, the Virginia State Bar, and the American Bankruptcy Institute. He is a Fellow of the American Bar Association, the Virginia Law Foundation, the Roanoke Law Foundation, the Litigation Counsel of America, and the National Conference of Bar Presidents.

John H. Maddock III, McGuireWoods LLP / Richmond

John H. Maddock III, co-author of Chapter 9, is a partner in the Richmond office of McGuireWoods LLP. His practice focuses on insolvency and debtor-creditor issues, including bankruptcy, state creditors’ rights law, and commercial litigation. He joined the firm after clerking for the Honorable Douglas O. Tice, Jr., United States Bankruptcy Judge in Richmond, Virginia, and the Honorable Conrad B. Dubenstein, Chief United States Bankruptcy Judge in Brooklyn, New York. He has been named a Virginia Legal Elite in business bankruptcy law and is a past chair of the Bankruptcy Section of the Richmond Bar Association.

Richard C. Maxwell, Woods Rogers PLC / Roanoke

Richard C. Maxwell, author of Chapter 7, is a member of the firm of Woods Rogers PLC. He is head of the firm’s Bankruptcy and Creditors’ Rights Group. His practice area includes bankruptcy and creditors’ rights, commercial law, and equine law. He is a Fellow in the American College of Bankruptcy. He is also the former Director and Chairman of the Bankruptcy Section of the Virginia State Bar, the former Chairman of the Advanced Consumer Bankruptcy Law Conference, and serves on the planning committee for the Mid-Atlantic Institute on Bankruptcy and Reorganization Practice. He is the editor of the materials on Enforcement of Federal Liens and Foreign State Court Judgments contained in Enforcement of Liens and Judgments in Virginia published by the Virginia Law Foundation. Mr. Maxwell earned a bachelor’s degree from Lafayette College, a masters of business administration degree from Eastern Michigan University, and a law degree, cum laude, from the University of Richmond where he was a member of the Order of the Coif. He has been recognized in the Best Lawyers in America, Super Lawyers, and named as a Legal Elite by the Virginia Business magazine.

Jane Ostdiek, Roanoke

Jane Ostdiek, co-author of Chapter 6, is an associate at the Law Offices of Leon P. Ferrance, P.C. in Roanoke. Ms. Ostdiek received her B.A. from the University of Maryland, College Park in 2012, and her J.D. from William & Mary School of Law in 2015, served as the Senior Notes Editor of the Business Law Review. She competed with William & Mary’s Moot Court team, and received an “Outstanding Oral Advocate” award at the 23d Annual Duberstein Bankruptcy Moot Court Competition in 2015, and worked as a graduate fellow at the Center of Legal and Court Technology from 2012-2015. Ms. Ostdiek’s practice focuses on collections law, domestic law, and estate planning. She is a member of the Virginia State Bar.

Doan T. Phan, McGuireWoods LLP / Tysons

Doan T. Phan, co-author of Chapter 2, is an associate at McGuireWoods where she focuses her practice on bankruptcy and financial restructuring, including corporate bankruptcy proceedings, out-of-court workouts, and debtor-creditor issues. She also has experience representing landlords, tenants, and parties to executory contracts and defendants in bankruptcy litigation. Prior to joining McGuireWoods, Ms. Phan served as a law clerk to the Honorable Brian F. Kenney in the U.S. Bankruptcy Court for the Eastern District of Virginia. Ms. Phan’s articles include “Chapter 13 and Domestic Support Obligations”, Virginia State Bar Bankruptcy Law News, Fall 2018, and “Redefining Lincoln’s Law: How to Shape the Theory of Implied Certifications Post-Escobar,” J. L. Econ & Pol’y, 2017.

Nancy A. Rossner, The Community Tax Law Project/ Richmond

Nancy A. Rossner, author of Chapter 8, is a senior attorney with The Community Tax Law Project (CTLP), the first independent low income taxpayer clinic in the nation. She received her B.A. Summa Cum Laude from the University of Binghamton, State University of New York, where she became a member of the Phi Eta Sigma National Honor Society and the Phi Beta Kappa Society and served as a teaching assistant for the course Philosophy: Law and Justice. She received her J.D. from the University of Richmond, T.C. Williams School of Law where she served as the Annual Survey Editor for the Journal of Law and Technology. Ms. Rossner is a member of the Virginia State Bar, the Metro Richmond Women’s Bar Association, and the American Bar Association Tax Section’s Pro Bono and Tax Clinic Committee. She contributed to the 6th Edition of the ABA Tax Section publication, “Effectively Representing Your Client Before the IRS” and co-authored an article for Virginia Lawyer, “Affordable Care Act and the IRS: Implementation and Now Enforcement.” Ms. Rossner represents lowincome taxpayers in disputes with the Internal Revenue Service and the Virginia Department of Taxation at all levels of controversy including audits, collections, innocent spouse relief, and U.S. Tax Court. Ms. Rossner has served on numerous panels, at both regional CLE’s and national conferences, addressing income tax matters and regularly presents at community events on tax issues affecting Virginia taxpayers.

Jessica O. Taylor, McGuireWoods LLP/ Richmond

Jessica O. Taylor, co-author of Chapter 9, is an associate in the Richmond office of McGuireWoods LLP. Her practice focuses on insolvency and debtorcreditor issues, including bankruptcy, state creditors’ rights law, and commercial litigation. She joined the firm after clerking for the Honorable Brian F. Kenney, United States Bankruptcy Judge in Alexandria, Virginia. Her judicial experience extends to the U.S. Bankruptcy Court for the Southern District of New York, where she interned for the Honorable Allan L. Gropper during her second year of law school.

James L. Windsor, Kaufman & Canoles, P.C. / Newport News

James L. Windsor, author of Chapter 3, is the Managing Director of the Virginia Beach office of Kaufman & Canoles, P.C. and is the Chairman of the firm’s Real Estate Claims, Title Insurance and Mortgage Default Solutions Group. Mr. Windsor is an AV Preeminent-rated lawyer with over 30 years of experience and expertise in counseling and litigation involving title insurance, real property, construction, mechanics’ liens, bond claims, mortgage lending, creditors’ rights, and commercial and banking law. He earned a B.S. degree, cum laude, from James Madison University and a J.D. from the T.C. Williams School of Law at the University of Richmond. Mr. Windsor is a member of the Virginia State Bar, the American Bar Association, the Virginia Beach Bar Association, and the Virginia Land Title Association. Mr. Windsor lectures frequently before construction and real estate professionals, lenders, lawyers, and others involved in construction and real estate law. He has written a book, a law review article, and other articles on topics of interest to the construction and real estate industry. Mr. Windsor was selected by peers and recognized by Virginia Business Magazine as a member of “Virginia’s Legal Elite” in 2003, 2004, 2007-2014 in the area of Construction Law. He was also listed in Virginia Super Lawyers for 2006, 2010-2013, and 2015 in the area of Real Estate.