We see a lot of articles out there with misinformation as to whether or not you should have a will. As a Virginia resident it is always our recommendation – no matter the size of an estate – that an individual put a will in place. Here are the top five (5) reasons why we advocate for a will for everyone:
- (1) It will make things easier for the care of your minor children. If you have minor children, a will allows you to name who will raise your children in the event something happens to you and your child’s other parent. While the best interest of the child test is always going to be at play in Virginia, Courts respect and generally follow these provisions. If you do not have a will that names a guardian for your minor children your estate will more than likely have to pay for the courts to rule as to who should be guardian thereby causing additional stress and cost to your loved ones. In addition, if you have minor children, you may not want them to have control of your assets at eighteen (18). With the right provisions a will, via a contingent trust or through a provision directing assets to an already created trust (a pour over will), lets you delay when a minor child will inherit your assets.
- (2) It will make it clear who you want your assets to go to and when. A will allows you choose who your assets go to. If you do not put it in writing as to what your wishes are, intestate law kicks in – and the Code of Virginia will dictate how your assets will be distributed. While we all may believe that our assets will go to our spouse or our children – this is especially important in the case where your spouse has had children with someone else. Virginia Code Section 64.2-200 holds that if you die without a will (intestate), and your spouse has surviving children, and one or more of those children were not your children as well– then you the surviving spouse will receive 1/3rd of the total estate and the children will share 2/3 of the estate.
- (3) A will save your loved one’s money and time over the long run. While a will is going to cost money to have drafted – in our experience it will never cost more than what it can save you. As mentioned before – if you do not name someone to take legal guardianship of your children, you will have to pay the state to do so. If you do not name who will be in control of your minor child’s finances – you will pay the state to do that. In addition, if you do not have a will, in order for someone to become your administrator to administrate your estate the state will require that your family or friends post a bond in order to administer your estate. Furthermore, there are provisions you can add to your will to ease distribution and provide proof to the Courts that the will is legitimate without the requirement of depositions or affidavits once you pass. These are just a few examples, there are many many more.
- (4) A will should speed up the conclusion of your estate. A will, drafted with the right provisions, can make winding up your estate and distributing your assets easier. Virginia is a tough state. Often our laws are written in such a way that the Code does not grant certain powers without an express provision doing so. By having a will, you can grant powers to your loved ones that will make handling your affairs when you pass easier.
- (5) A will gives you and your loved ones peace of mind. By having a will in place, you know that you are naming the people you trust to act on your (and your child’s) behalf – and that even if you organize all of your assets to transfer outside of probate – by putting a will in place it will be there if your loved ones need it to distribute any assets that fall through the cracks. We often see loved ones to attempt to utilize a power of attorney when some has passed. It is important to understand that a power of attorney ends when an individual passes. While it is very common for the lay public to believe that a power of attorney may be utilized to finalize and close their loved one’s estates – the trust is that it is not, and reliance on just a power of attorney leads to pain, frustration and excess cost.
These are just the top five reasons. There are hundreds of more reasons – each specific to you and your family. If you are interested in putting a will in place, or discussing putting an estate plan in place – please feel free to reach out to one of our estate attorneys for an initial consultation at (804) 423-1382 or via email to info@wmmlegal.com.
