THE WILL

The first issue to arise in planning a person’s estate often is the preparation of the will.

What exactly is a will? 

First, the legal definition.  Simply defined, the will is a written document signed by a person which directs the handling and disposition of his or her property and liabilities upon death.  OK, that sounds like a typical lawyer response.  But, tell me…

Why do I need a will? What do I accomplish with a will? 

First, the obvious.

A person is entitled to designate in his or her will the person or persons to whom his or her property will be distributed at death, in whatever shares desired.  Even though Virginia law specifies the persons to whom a decedent’s property passes in the absence of a will, this designation may not correspond with a person’s wishes.

To a certain degree, a spouse has property rights in a deceased spouse’s estate and therefore has some control over the disposition of the deceased spouse’s property.  But, to a large extent, “It’s your property — You can do with it what you want.”

Second, a person has a right to designate in his or her will the GUARDIAN(S) who will be charged with custody, care, and education of his or her minor children.

In order to avoid a custody dispute among family members, and also to insure that children will be raised by persons who possess the appropriate parental, family, and religious values, parents must agree on the appointment of a GUARDIAN for their minor children.

Parents should discuss this matter in detail among themselves and also with the person or persons to be named guardian so that the everyone is given the opportunity to comprehend the duties of a guardian.  The parents must also agree on a successor guardian or guardians to serve in the event the person initially appointed is unable to undertake or continue the guardian duties.

Third, a person has the right to designate the EXECUTOR of his or her estate.

Many factors enter into a person’s selection of an EXECUTOR.

  • First, Virginia generally requires an executor to be a Virginia resident (nonresident family members may serve as executor under certain circumstances).
  • Furthermore, since an executor actually serves as a record-keeper, asset manager, and liquidator, the person appointed should be responsible, have some experience in financial matters, and be able to keep current and accurate records.
  • Also, because a person at death may have left a residence or other items which must be sold or which may need continuing close personal supervision, there may be a need to select a person located close to the decedent’s residence or business. Or, a person may have left assets or business interests requiring the administrative or investment expertise of a specialized professional.  For instance, banks having trust departments offer both substantial administrative resources and reliable investment performance.  Money managers, by their very nature, make sense too, even though they may not possess sufficient knowledge of probate procedures.

Because of the needed attention to detail and the required understanding of inventory and accounting procedures, attorneys and CPA’s are also obvious choices.

In some instances, it may even be appropriate to name two or more persons to simultaneously serve as “CO-EXECUTORS.”  This is especially wise where the personal knowledge of a family member is desired, but where the complexity of the decedent’s assets requires more specialized expertise.

In any event, one should always consider appointing a “SUCCESSOREXECUTOR(S) should the person or persons initially appointed be unable to undertake or continue to serve as executor.

Not only may a person designate his or her executor, but he or she may also provide additional instructions to or delegate additional authority to the executor.

For example, one may direct that the executor sell certain assets rather than distribute them “in kind.”  Or, a person may request that the executor not dispose of a personal residence, but rather rent it to specified person free of charge for as long as the specified person wishes to reside there.  A person may also direct that certain liabilities be satisfied or that a certain asset like a parcel of rental property pass to the intended recipient “subject to” the liability.  Furthermore, one may direct his or her executor not to distribute a sum of cash to a distributee, but rather to purchase an annuity for that person.  Frankly, the options are endless.

Does a person have to appoint an executor?

Well, actually no.

In such a case, the court will appoint an ADMINISTORATOR to handle the administration of a person’s estate.  Generally, subject to some additional administrative requirements, the administrator is charged with the same duties and vested with the same administrative powers as the executor.  Even though any person may apply for appointment as an administrator of an estate, in most circumstances family members decide among themselves who should qualify as administrator.

If an administrator has the same authority as an executor, and if my family members get along fine, why do I need to appoint an executor? If I die, my relatives will decide among themselves who should serve as administrator, and everything will be fine, right

Well, maybe.

  1. First, a person may not be able to determine beforehand the possible existence of an adversarial relationship which may cause the administration of the estate to be unnecessarily lengthy and difficult.
  2. Second, a surety on the executor’s bond will be required, representing an unnecessary expense to the estate.
  3. Third, a person may in a will provide an executor with additional powers and authority which may not otherwise be exercised by a court appointed administrator.

 


We hope that the above discussion has brought to light many of the issues which must be addressed in the estate planning process. It is intended for informational purposes only and to assist a client in his or her general understanding of the estate planning process. We do not intend for this to be an exhaustive discussion of all issues involved.  Nor do we intend for this information to be a substitute for legal advice.  However, if you have any questions about any of the above information, or if you need additional assistance with your estate planning, please feel free to contact us.