Content Highlights
Introduction to Estate Planning
- Starting the Process
- Collecting Information
- Recognizing Ethical Dilemmas
- Conducting the Interview
- Mapping the Plan
- Forms of Ownership
- Elective Share for Estates of Decedents Dying Before/After January 1, 2017
- Other Statutory Allowances
- Reasons for Having a Will
- Types and Uses of Trusts
- Alternatives to Trusts
- Planning for Married Couples
- Drafting Wills and Trusts
- Powers of Attorney
- Choosing Fiduciaries
- Executing and Safekeeping Documents
- Initiating the Estate Administration Process
- Probate and Qualification
- Administration After Probate
- Winding Up and Settlement of the Estate
This book is drawn from the 2022 edition of The Virginia Lawyer: A Deskbook for Practitioners.
Advising Estate Clients in Virginia offers a comprehensive discussion of this area for practitioners who are helping clients to plan a simple estate. With practical advice from experts in the field and a variety of electronic forms, this book provides an overview of the process to help guide decisions made by the client in this important area. Whether considering benefits of using intervivos gifts or the reasons a client might choose a trust to transfer wealth, this book with help to explore the options for a plan that will meet the client’s needs.
CHAPTER 1: INTRODUCTION TO ESTATE PLANNING
1.1 NATURE OF THE PRACTICE
1.2 DEVELOPING THE PLAN
CHAPTER 2: STARTING THE PROCESS
2.1 INITIAL CONTACT
2.101 In General
2.102 Correspondence to Confirm Appointment
2.103 Discussing Fees
2.104 “Free” Initial Consultations
2.105 Informational Brochures
2.106 Acknowledging Referrals
2.2 SCHEDULING THE INTERVIEW
APPENDIX 2-1: INITIAL LETTER TO CLIENT
CHAPTER 3: COLLECTING INFORMATION
3.1 WHAT INFORMATION TO ASK FOR
3.2 HOW TO ASK FOR INFORMATION
APPENDIX 3-1: ENGAGEMENT LETTER
APPENDIX 3-2: SHORT-FORM QUESTIONNAIRE
CHAPTER 4: RECOGNIZING ETHICAL DILEMMAS
4.1 MULTIPLE INTERESTED PARTIES
4.2 DEFINING THE REPRESENTATION
CHAPTER 5: CONDUCTING THE INTERVIEW
5.1 GENERAL PRINCIPLES
5.2 DOCUMENTING CLIENT CHOICES
CHAPTER 6: MAPPING THE PLAN
6.1 FUNDAMENTALS OF PLANNING
6.2 INCAPACITY PLANNING, TAX MATTERS, AND SPOUSAL
INTERESTS
6.3 IMPLEMENTING THE PLAN
CHAPTER 7: FORMS OF OWNERSHIP
7.1 FEE SIMPLE
7.2 TENANTS IN COMMON
7.3 JOINT TENANTS WITH RIGHT OF SURVIVORSHIP
7.4 TENANTS BY THE ENTIRETY
7.5 COMMUNITY PROPERTY
7.6 PAYABLE ON DEATH ACCOUNTS
7.7 TRANSFER ON DEATH ACCOUNTS
7.8 TOD OWNERSHIP OF SECURITIES
7.9 TOD OWNERSHIP OF REAL ESTATE
CHAPTER 8: ELECTIVE SHARE FOR ESTATES OF DECEDENTS
DYING BEFORE JANUARY 1, 2017
8.1 IN GENERAL
8.2 DESCRIPTION AND TIMING
8.3 PROPERTY INCLUDED IN THE AUGMENTED ESTATE
8.4 EXCLUDED PROPERTY
8.5 MEANING OF “PROPERTY”
8.6 HOW THE AUGMENTED ESTATE IS SATISFIED
CHAPTER 9: ELECTIVE SHARE FOR ESTATES OF DECEDENTS
DYING ON OR AFTER JANUARY 1, 2017
9.1 IN GENERAL
9.2 AMOUNT OF ELECTIVE SHARE AND TIMING OF
ELECTION
9.3 PROPERTY INCLUDED IN THE AUGMENTED ESTATE
AND MARITAL PROPERTY PORTION
9.4 PROPERTY EXCLUDED FROM THE AUGMENTED ESTATE
9.5 HOW THE ELECTIVE SHARE AMOUNT IS SATISFIED
CHAPTER 10: OTHER STATUTORY ALLOWANCES
10.1 FAMILY ALLOWANCE
10.2 EXEMPT PROPERTY
10.3 HOMESTEAD ALLOWANCE
CHAPTER 11: REASONS FOR HAVING A WILL
11.1 CONTROL OVER DISPOSITION OF PROPERTY
11.2 REDUCTION OF ESTATE TAXES
11.3 CONTROL OVER NAMING FIDUCIARIES
CHAPTER 12: TYPES OF TRUSTS
12.1 IN GENERAL
12.2 REVOCABLE AND IRREVOCABLE TRUSTS COMPARED
12.3 INTER VIVOS AND TESTAMENTARY TRUSTS COMPARED
12.4 PROBATE FEES AND ADMINISTRATION EXPENSES
12.5 FEDERAL INCOME TAXES: GRANTOR VERSUS
NONGRANTOR TRUSTS
CHAPTER 13: USES OF TRUSTS
13.1 AVOIDING PROBATE
13.2 MANAGING ASSETS
13.3 TAX SAVINGS
13.301 Credit Shelter Trusts
13.302 Marital Trusts
13.303 Other Tax-Saving Trusts
13.304 Providing for Minors and Other Persons Under a
Disability
13.4 PROVIDING FOR SPENDTHRIFTS
CHAPTER 14: ALTERNATIVES TO TRUSTS
14.1 UNIFORM TRANSFERS TO MINORS ACT
14.2 UNIFORM CUSTODIAL TRUST ACT
14.3 POD BANK ACCOUNTS, SAVINGS ACCOUNTS AND
UNITED STATES SAVINGS BONDS; TOD INVESTMENTS;
REAL PROPERTY
14.4 SURVIVORSHIP
CHAPTER 15: PLANNING FOR MARRIED COUPLES
15.1 MARITAL AGREEMENTS
15.2 PROVIDING FOR A SPOUSE WHILE CONTROLLING THE
DISPOSITION OF THE REMAINDER
CHAPTER 16: DRAFTING WILLS AND TRUSTS
16.1 WILL STATUTES
16.2 WILL FORMS
16.3 LIVING TRUSTS
16.301 In General
16.302 Contrast to the Law of Wills
16.303 Pour-Over Wills and Living Trust Arrangements
16.4 REVOCABLE TRUST FORM
APPENDIX 16-1: NON-TAX WILL FOR SINGLE PERSON WITH
TRUST FOR YOUNG BENEFICIARIES
APPENDIX 16-2: NON-TAX WILL WITH TRUST FOR CHILDREN
APPENDIX 16-3: POUR-OVER WILL
APPENDIX 16-4: NON-TAX TRUST WITH TRUST FOR CHILDREN
CHAPTER 17: POWERS OF ATTORNEY
17.1 IN GENERAL
17.2 TYPES OF POWERS OF ATTORNEY
17.3 CONSTRUCTION OF POWERS OF ATTORNEY
17.4 “DURABLE” POWERS OF ATTORNEY
17.5 CONTINGENT POWERS OF ATTORNEY VERSUS
DELIVERY IN ESCROW
17.6 ENDING THE POWER OF ATTORNEY
17.7 RELATIONSHIP BETWEEN GUARDIAN AND AGENT
UNDER DURABLE POWER OF ATTORNEY OR ADVANCE
DIRECTIVE
17.8 FINAL DIRECTIVES: HEALTH CARE POWERS OF
ATTORNEY, ADVANCE DIRECTIVES, AND DO NOT
RESUSCITATE ORDERS
17.801 In General
17.802 Advance Directives
17.803 Consent of Family Members in Absence of a Directive
17.804 Do Not Resuscitate Orders
17.805 Directive that All Medical Care Be Provided
APPENDIX 17-1: DURABLE GENERAL POWER OF ATTORNEY
APPENDIX 17-2: MEMORANDUM OF UNDERSTANDING
ACCOMPANYING POWER OF ATTORNEY
APPENDIX 17-3: MEMORANDUM OF ESCROW DELIVERY OF
POWER OF ATTORNEY AUTHORIZATION FOR RELEASE
OF CONFIDENTIAL AND PROTECTED HEALTH
INFORMATION
APPENDIX 17-4: ADVANCE MEDICAL DIRECTIVE:
APPOINTMENT OF AGENT FOR HEALTH CARE
DECISIONS; APPOINTMENT OF PERSONAL
REPRESENTATIVE TO OBTAIN HEALTH CARE
INFORMATION; APPOINTMENT OF AGENT TO
MAKE ANATOMICAL GIFTS
CHAPTER 18: GUARDIANSHIP AND CONSERVATORSHIP
OF INCAPACITATED ADULTS
18.1 INTRODUCTION
18.2 PETITION FOR APPOINTMENT
18.201 Definitions
18.202 Filing the Petition
18.203 Contents of the Petition
18.204 Notice Requirements
18.3 GUARDIAN AD LITEM
18.301 Certification
18.302 Role
18.303 Respondent’s Right to Counsel and Trial
18.304 Statutory Duties in General
18.305 Investigation
18.306 Personal Appearance
18.307 Report
18.308 Fees
18.4 EVALUATION REPORT
18.401 In General
18.402 Contents
18.403 Obtaining the Evaluation
18.5 HEARING
18.6 QUALIFICATION OF GUARDIAN OR CONSERVATOR
18.7 POWERS AND DUTIES OF GUARDIAN
18.701 Powers in General
18.702 Effect of Prior Advance Medical Directive or
Power of Attorney
18.703 Contact with Incapacitated Person
18.704 Mandated Reporter
18.705 Fiduciary Capacity
18.706 Limitations on Authority
18.707 Annual Reports
18.708 Fees
18.709 Short-Term Psychiatric Hospitalization
18.8 POWERS AND DUTIES OF CONSERVATOR
18.801 Powers in General
18.802 Sale of Real Estate
18.803 Estate Planning
18.804 Mandated Reporter
18.805 Inventory and Accountings
18.806 Fees
18.9 RESTORATION, MODIFICATION, OR TERMINATION
18.901 Petition
18.902 Relief
18.903 Procedure
18.904 Findings
18.905 Termination
18.10 STANDBY GUARDIAN
18.11 VIRGINIA UNIFORM ADULT GUARDIANSHIP AND
PROTECTIVE PROCEEDINGS ACT
18.1101 In General
18.1102 Jurisdictional Rules
18.1103 Transfer of Authority
18.1104 Status of Orders from Other States
APPENDIX 18-1: PETITION FOR APPOINTMENT OF GUARDIAN
AND CONSERVATOR
APPENDIX 18-2: NOTICE
APPENDIX 18-3: ORDER APPOINTING GUARDIAN AD LITEM
APPENDIX 18-4: REPORT OF GUARDIAN AD LITEM
APPENDIX 18-5: EVALUATION FORM
APPENDIX 18-6: ORDER APPOINTING CONSERVATOR AND
GUARDIAN
CHAPTER 19: CHOOSING FIDUCIARIES
19.1 IN GENERAL
19.2 EXECUTORS
19.3 ADMINISTRATORS AND ADMINISTRATORS WITH WILL
ANNEXED
19.301 Defined
19.302 Who May Serve
19.4 TRUSTEES, GUARDIANS, AND ATTORNEYS-IN-FACT
19.401 Trustees
19.402 Guardians
19.403 Attorneys-in-Fact
19.5 CO-FIDUCIARIES
19.6 OTHER CONSIDERATIONS
CHAPTER 20: EXECUTING AND SAFEKEEPING DOCUMENTS
20.1 REVIEWING DOCUMENTS
20.101 Review by Client
20.102 Review by Corporate or Other Professional Fiduciary
20.103 Word Processing Review
20.2 EXECUTION OF WILLS
20.3 EXECUTION OF OTHER ESTATE PLANNING
DOCUMENTS
20.301 Trusts
20.302 Powers of Attorney
20.303 Advance Medical Directives
20.304 Anatomical Gift Forms
20.4 SAFEKEEPING OF THE DOCUMENTS
20.401 Client’s Safe Deposit Box
20.402 Attorney Safekeeping
20.403 Corporate Fiduciary
20.404 Clerk of Court
20.405 Originals and Copies of Instruments
20.406 Destruction of Prior Originals
20.5 TERMINATING THE REPRESENTATION
CHAPTER 21: INITIATING THE ESTATE ADMINISTRATION
PROCESS
21.1 INTRODUCTION AND DEFINITIONS
21.101 Introduction
21.102 Definitions
21.2 ETHICAL CONSIDERATIONS
21.201 Identifying the Client
21.202 Dual Representation
21.203 Attorney Fees
21.204 Scope of Representation
21.3 PERSONAL DECISIONS AFTER DEATH
21.301 Burial Decisions
21.302 Funeral Arrangements
21.303 Payment of Funeral Expenses
21.304 Death Certificates
21.305 Obituary
21.306 Notification of Family Members
21.307 Organ Donation
21.308 Autopsy
21.309 Compelling Production of a Will
21.310 Procedure to Probate Lost Will
21.311 Securing Assets
21.312 Determining Whether to Probate
CHAPTER 22: PROBATE AND QUALIFICATION
22.1 JURISDICTION
22.2 WHO MAY QUALIFY AS PERSONAL REPRESENTATIVE
22.201 Who May Qualify Where There Is a Will
22.202 Who May Qualify Where There Is No Will
22.203 Appointment of Personal Representative upon Motion
of Any Person
22.204 Curators
22.3 REQUIREMENTS FOR PROBATE OF A WILL
22.301 In General
22.302 Self-Proving Wills
22.303 Wills That Are Not Self-Proving
22.304 Holographic Wills
22.305 Witness Missing, Out-of-State, or Deceased
22.4 METHODS OF PROBATE
22.401 Ex Parte Probate
22.402 Quasi Inter Partes Probate
22.403 Inter Partes Probate
22.404 Complaint to Establish or Impeach a Will (devisavit
vel non)
22.5 PROBATE OF LOST OR DESTROYED WILL
22.6 PROBATE OF LATER WILL
22.7 PROBATE OF FOREIGN WILL
22.8 COMPELLING PRODUCTION OF WILL
22.9 DESTROYING OR CONCEALING WILL
22.10 PRACTICAL ASPECTS OF EX PARTE PROBATE AND
QUALIFICATION BEFORE CLERK
22.1001 Preliminary Matters
22.1002 Bond
22.1003 Surety
22.1004 Documentation at the Time of Probate
22.1005 Fees and Taxes
22.11 PROBATE AND QUALIFICATION ORDER
CHAPTER 23: ADMINISTRATION AFTER PROBATE
23.1 IN GENERAL
23.2 POWERS AND DUTIES OF PERSONAL
REPRESENTATIVES
23.201 In General
23.202 Powers Granted by Will
23.203 Powers Granted by Law
23.204 Powers Incorporated by Reference
23.205 Role of Co-Personal Representatives
23.206 Collecting and Preserving Assets
23.207 Standard of Judgment for Investments
23.3 NOTICE OF PROBATE
23.301 In General
23.302 Responsibility for Filing
23.303 Time for Filing
23.304 Recipients of Notice
23.305 Exceptions to Notice Requirement
23.306 Form of Notice
23.307 Delivery of Notice
23.308 Filing the Affidavit
23.309 Effect of Failure to File Notice
23.4 COLLECTION OF ASSETS
23.401 In General
23.402 Obtaining a Taxpayer Identification Number
23.403 Establishing the Estate Bank Account
23.404 Letters of Qualification
23.405 Handling Decedent’s Mail
23.406 Obtaining Death Certificates
23.5 FILING THE INVENTORY
23.501 In General
23.502 Period for Filing
23.503 Valuation
23.504 Property Included on Inventory
23.505 Exceptions to Filing Inventory
23.506 Filing Fee
23.507 Effect of Failure to File
23.508 After-Discovered Assets
23.6 MANAGING AND ADMINISTERING ASSETS
23.601 In General
23.602 Tangible Personal Property
23.603 Stocks and Bonds
23.604 Real Property
23.605 Life Insurance
23.606 Assets in Other States
23.607 Record-Keeping
23.608 Appraisals of Property
23.7 FILING TAX RETURNS
23.701 Personal Income Tax of Decedent
23.702 Estate Tax
23.703 Estate Income Tax
23.8 COMMISSIONER OF ACCOUNTS
23.801 In General
23.802 Responsibilities and Duties of Office
23.803 Power of Office
23.804 Local Customs
CHAPTER 24: WINDING UP AND SETTLEMENT OF THE ESTATE
24.1 DEBTS AND DEMANDS
24.101 In General
24.102 Show Cause Order
24.103 Distribution Order
24.104 Dealing with Contingent Claims
24.105 Scope of Protection for Personal Representative
24.2 DISTRIBUTION OF ASSETS
24.201 Distribution Checklist
24.202 Intestacy
24.203 When Distribution Can Be Made
24.204 Distributions to Minors
24.205 Estate Insufficient to Satisfy Debts and Distributions
24.3 FILING THE ACCOUNTING
24.301 Statement in Lieu of Accounting
24.302 Statement of Accounting
24.4 DISTRIBUTION OF FINAL ASSETS
TABLE OF AUTHORITIES
INDEX
