Your Dreams, Our Knowledge…Creating Estate Plans That Work!
There are many legal strategies involved in estate planning, including wills, revocable living trusts, irrevocable trusts, durable powers of attorney, and health care documents. New clients often say that they do not have an estate plan. Most people are surprised to learn that they actually do have a plan. In the absence of legal planning otherwise, their estate will be distributed after death according to Virginia’s laws of intestacy. Of course, this may not be the plan they would have chosen. A properly drafted estate plan will replace the terms of the Commonwealth ’s estate plan with your own.
Your Last Will and Testament
Your last will and testament is just one part of a comprehensive estate plan. If a person dies without a Will they are said to have died “intestate” and commonwealth laws will determine how and to whom the person’s assets will be distributed. Some things you should know about wills:
- A will has no legal authority until after death. So, a will does not help manage a person’s affairs when they are incapacitated, whether by illness or injury.
- A will does not help an estate avoid probate. A will is the legal document submitted to the probate court, so it is basically an “admission ticket” to probate.
- A will is the only legal document through which parents can name the guardians (or back-up parents) for minor children should those children become orphaned. All parents of minor children should have a legal will naming guardians for those children.
Advance directives are written documents that specify the type of medical care a person would want should they lose the ability to make (and communicate) their own decisions. There are two types of advance directives: a durable power of attorney for health care and a living will. A durable power of attorney for health care, also known as a health care proxy, is a document in which the maker gives another person (known as the patient advocate) power to make medical treatment and related personal care decisions.
Anyone over the age of 18 may execute a durable power of attorney for health care, and this document is legally binding in Virginia. Some people confuse this with a “living will,” which is a written statement informing doctors and family members what type of medical care should be given (or withheld) in the event of terminal illness or permanent unconsciousness, and the patient is no longer able to make or communicate decisions about their continued care.
Two key differences between these documents are that 1) the durable power of attorney for health care designates who makes decisions while the living will provides guidance on what those decisions should be; and 2) a durable power of attorney for health care is legally binding in the commonwealth of Virginia, while a living will is not. Doctors and hospitals may comply with a living will, but are not legally compelled to do so.