When dealing with estate planning in Virginia there are unique concepts and terminology that are used in last wills and testaments. This can sometimes make it difficult to discern the various roles and responsibilities of an estate plan as well as deciphering the terminology. The following are some of the important terms and definitions that often come into play in estate planning cases.
An administrator in Virginia is an individual who is qualified to act on behalf of a decedent’s estate to administer the estate or who has not been nominated in a decedent’s last will and testament because the decedent has died intestate. An administrator is usually one that has priority to serve based on the laws of the Commonwealth of Virginia.
Advanced Medical Directive
An advanced medical directive is a document that allows an individual to appoint an agent to make healthcare decisions on their behalf. It often also addresses an individual’s wishes with regards to the administration on life support, nutrition and hydration, and pain reliever or medication to alleviate pain, in the event that an individual is in a permanent vegetative state with no reasonable hope for recovery. Finally, the document can also include an individual’s wishes with regard to organ donation or specific wishes with regard to medical treatment or other procedures.
An advanced medical directive is important because it allows someone else to make an individual’s health care decisions when that person can no longer make them. Without an advanced medical directive, it is sometimes necessary for court’s intervention to appoint someone to make those decisions as a guardian on behalf of the incapacitated individual or the individual that was beginning to lose capacity. Often, the guardianship process can be costly and time-consuming and it does require continued court supervision.
Having an advanced medical directive will allow somebody to act in someone else’s stead in the event that they can no longer make health care decisions for themselves. The other primary benefit of an advanced medical directive is that it often avoids the necessity of having a guardian appointed. The guardianship process can be costly and time-consuming and can also mean that somebody cannot make medical decisions until they have been appointed, meaning that there is no one available to make medical decisions in a time of need for an individual when they can no longer make those decisions for themselves.
Differences to Power of Attorney
It is similar to a power of attorney but, typically, durable general powers of attorneys are documents that allow someone to step into an individual’s shoes for financial or legal purposes whereas an advanced medical directive allows someone to make healthcare decisions.
Estate administration is a general term that can encompass the administration or the dealing with the assets of a decedent after their death.
An executor is an individual who, in the Commonwealth of Virginia, is nominated in the decedent’s last will and testament to act on behalf of the estate. An executor qualifies in the Commonwealth of Virginia with the court to serve and, after qualification, may act to marshal the assets of the estate, pay any legally enforceable debt, file any required income or estate tax returns and then make distribution of the assets either pursuant to the terms of the last will and testament if applicable or pursuant to the terms of Virginia law. When naming somebody as the person to make the decision on their behalf, the appointed individual should be familiar with the individual’s wishes. It’s helpful, often, to have conversations with an agent so that they clearly know preferences in different situations.
A guardian is an individual who is appointed to act on behalf of somebody who cannot make financial, legal or medical decisions on their own. Often, a guardianship is initiated as a result of an individual not having either advance medical directive, a health care power of attorney, or a financial and/or a financial power of attorney. When an individual or an adult can no longer make decisions on their behalf, in order for decisions to be made, it sometimes becomes necessary for the court to intervene and to appoint somebody else to act on behalf of the ward.
Incapacity or lack of capacity is defined specifically in the law of the Commonwealth of Virginia. Generally, incapacity is a broad term that may be used to describe when an individual is no longer able to make financial, legal, or healthcare decisions on their behalf.
Power of Attorney
A power of attorney is a document that allows an individual to name an attorney to act on their behalf with regard to financial and legal matters. Powers of attorneys can be broad in scope or limited in scope and, sometimes, it may be helpful to speak with an attorney to understand the ramifications of the provisions or the authority that has been granted to the named attorney in fact.
Probate is defined as the proving of a will. It is understood to be the process of court administration that allows for the administration of a decedent’s estate which would include marshaling all of the estate assets, paying any legally enforceable debts, filing any income or estate tax returns that are required, and then making distribution pursuant to either the last will and testament or the laws of the state of or the Commonwealth of Virginia.
A last will and testament is a document that nominates the personal representative or an executor in the Commonwealth of Virginia and describes how a decedent’s estate shall be administered. It often includes the provisions for how the estate should pass on or be distributed to beneficiaries.