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| His, Hers, and Ours Several times a week, prospective clients call our office to discuss the preparation of a will, often prefacing the discussion with, “My situation is unique.” After twenty-five years of drafting wills and trust documents, there is not much that surprises us. Some situations involve a “blended” family, composed of the husband’s children, the wife’s children, and the children of the current marriage. The desires of the parties differ with each couple. However, “blended” families need to determine their plans for the untimely death of either or both spouses as much as, if not more than, traditional families. In the case of the one parent family, both former spouses should have wills with provisions for their children. Whether the case is a couple with a “blended family”, a single parent or individual, or a traditional family, drafting a will is important to insure your wishes once you are gone. The alternative is that the laws of the Commonwealth of Virginia will determine the beneficiaries of your estate and the method of distribution of your estate. Regardless of one’s marital status, attention should be given to naming a trustee. A trustee manages funds for a minor or special needs beneficiary. Testamentary trust language, when included within the body of a will, needs to be suitably drafted regardless of the family structure. Take the example of a single aunt. She has a nephew with serious learning disabilities; in addition, his parents are divorced. The aunt wants to assure that the trustee she names in her testamentary trust manages funds she has set aside for her nephew in an appropriate manner. Her niece, the young boy’s mother, is a spend-thrift; therefore, the aunt wants to name a more financially astute individual or corporation as Trustee. This is not a problem and we can assist in making such arrangements. The naming of a guardian (also called custodian) for a minor child in a post-divorce situation can be a sticky matter. In the event a father is drafting his will, his former wife with whom he has joint legal custody of the minor children would normally become the minor children’s sole guardian upon his death. However, he does have the right to name a successor guardian for his minor children. In addition, unless an agreement with his former spouse or a court order specifically states otherwise, he has the right to name any competent individual or corporation as trustee for funds he designates for his minor children. Aside from the foregoing issues, in 1991 the Commonwealth of Virginia adopted a system of property rights for surviving spouses known as the “augmented estate”. This system allows a surviving spouse to claim a statutory fraction of the deceased spouse’s augmented estate, even if the surviving spouse is not named as a beneficiary in the deceased spouse’s will. In the event a spouse dies without a will, Virginia law determines the share of the deceased spouse’s estate the surviving spouse is to receive. However, if a spouse dies with a will, the surviving spouse may petition the court to claim a statutory fraction of the deceased spouse’s augmented estate. The good news is that an astutely drafted will is very difficult to challenge in the Commonwealth of Virginia.
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• His, Hers, and Ours |
• Unlicensed or Underlicensed |
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