Role of the Family in Virginia Wills Planning

A person’s family may be concerned about their loved one’s will as they will want to best understand how assets are distributed at death and understand who is responsible for administering the estate. Often, with families that have high net worth, it is the parent or the grandparent’s generation that is passing on the bulk of the family wealth to future generations. When there is multigenerational distribution present and that transfer is of a significant amount, often family members are interested in understanding how their own financial future may or may not be secured.

The role of the family in relation to wills in Virginia can vary, and through the extensive means of will creation and estate planning, an experienced wills attorney will be essential in streamlining the process for the family.

Understanding Wealth Transfers

As a result of the large distribution of wealth experienced in this decade in the US, there will likely be a large amount of heavy transfers of wealth in the foreseeable future. Because a parent or a grandparent may currently still control a family’s wealth, understanding how that wealth is transferred, and sometimes working with the next generation is part of what an attorney can do to ensure that the assets are managed properly and preserved for future generations.

A last will and testament becomes a mechanism for distributing family assets. Sometimes it also serves in conjunction with other estate planning to minimize exposure to estate tax liability and to reduce and minimize administrative expenses. A carefully thought-out estate plan can also help to minimize family disputes.

Minimizing Tension

Proper estate planning and well thought out and contemplated estate planning can often assist with minimizing family disputes. Sometimes that may include counseling while the testator is alive with both the testator and the next generation so that the next generation understands the intentions of the testator. Often, having a clear estate plan can help to avoid challenges or family disputes, and more clearly define the roles of the family members in relation to their loved one’s will. This is due to the fact that a testator’s wishes are clearly expressed and there may not be as many opportunities to challenge a last will and testament or other estate planning documents.

Power of Executor

An executor is somebody who is a fiduciary for the estate. They are tasked with marshaling all of the assets, paying any of the legally enforceable debts, filing the decedent’s tax returns, and making distributions according to the laws of intestacy or according to the terms of the decedent’s last will and testament.

Often, a testator will discuss with the person they choose to nominate, the role that they can have in their estate plan. That may not always be the case and that person may not always be family. It is possible that a testator will discuss with that personal representative or executor what their wishes are, and that a will or trust has been created so that individual can be in agreement with what their anticipated obligations will be after the decedent’s death.

Duties of the Family

Unfortunately, there are often individuals that take advantage of seniors and manipulate or align themselves with seniors during a vulnerable time, and convince them to change their estate planning documents.

If a senior is at risk, proper estate planning may be helpful to minimize some of that risk to exposure of fraud. It may also assist in creating a pattern of estate planning for the decedent so that in the event a will does arise that is outside of a prior history of the decedent, there is more of a reason to suspect the validity of the last will and testament.

For example, if an individual has created several last will and testaments that essentially leave all of their assets to their three children, and then when the decedent was ill or beginning to waiver in capacity, they created a last will and testament that left all of their assets to a caretaker, the prior history may shed some concern on the current will, which may be used as evidence to invalidate the current will if fraud is suspected.

Access to the Will

It is a decision left to the testator to make whether or not their family has access to their loved one’s will after they die. It is not uncommon for a testator to not disclose their will, because the contents of that will may change prior to their death. In some cases, if a will is the only estate planning mechanism used, individuals or family members may not be privy to that information.

In other cases where large amounts of family wealth are being transferred and have more complex estate plans to set up, which may include gifting and trusts, the family may be counseled as to what the estate planning is, at the wishes of the testator, so that they understand what to expect after death or even during their lifetime.

Role of an Attorney

An attorney in Virginia works to properly capture a decedent’s or a testator’s wishes. On the estate planning side, an attorney can work with an individual to capture their wishes for distribution. On the administration side, after somebody has passed away, a lawyer can assist with the probate filings that are required, with creating inventory of the assets and accounting of the assets, and with creating a plan for distributing the assets, specifically whether some of those assets will be liquidated or distributed in kind.

An attorney can work with the testator at the testator’s choosing to discuss with the family what the estate plan will be. A testator and an attorney have attorney-client privilege, so not until after the testator’s death can an attorney discuss a will with only the personal representative if the personal representative also retains the attorney to assist them. It is up to the testator to allow the attorney to speak to their family to understand the ramifications of a will and what their wishes may be. However, it is not uncommon in the transfer of high net worth for testators to request that the next generation be counseled on money management and on how the estate plan will affect them to ensure their family wealth is being passed on in good hands, and to try to minimize family disputes or any other issues prior to death.