Estate Planning in Practice: Guardianships vs. Powers of Attorney

by Jonathan A. Nelson

When an adult is unable to take care of his or her own interests, whether because of aging, catastrophic injury, developmental impairments, or otherwise, a guardianship may be required to allow another person (the guardian) to exercise the rights of the incapacitated adult (the ward) on the ward’s behalf.  Virginia differentiates between a guardianship of the ward’s person and a conservatorship of the ward’s assets, but for ease of discussion I will just use the term ‘guardian’ here.

A guardianship is a significant and serious step, involving a loss of rights for the incapacitated adult and is sometimes a blunt instrument, requiring the loss of many rights in order to address a narrower problem.  There are procedural safeguards built into the legal process, and although they may seem unnecessary in circumstances where everyone has the ward’s best interests at heart, they are also there for other important reasons, particularly allowing the incapacitated adult to participate in the process as much as they can, and catching the rare abuses of the system.  There are also significant gray areas, such as when the ward’s condition has varying severity, symptoms, or speed of progression.

Two important tools for avoiding unnecessary guardianships are powers of attorney for financial matters and medical directives for medical decisions, each allowing an agent to act on behalf of the principal in that subject matter.  These documents are important enough that the Virginia Code requires, before a guardianship can be granted, inquiry as to whether the documents exist and are sufficient.  The principal must have executed these documents before capacity was lost.

For many individuals and circumstances, these documents are sufficient – the agent can use them to manage investments, pay bills, contract for skilled care, and (with certain safeguards) consent to major surgery or authorize a Do Not Resuscitate order.  Because these documents do not take away any rights of the principal but instead allow both principal and agent to work together, they can be especially helpful where some decisions are beyond the abilities of adult (such as filing a tax return) but others are not (such as writing checks).  These documents also allow greater autonomy by allowing the principal to select his own preferred agents rather than a judge making the final decision, as in a guardianship.

There are times, however, when a power of attorney or medical directive may not be enough to prevent an incapacitated adult’s condition from causing him or her to take actions adverse to himself or herself.  If mom has the technical ability to still write checks and mail letters, but has lost the filter to avoid sending money to the nice man from Bulgaria she met online, a guardianship may be the only way to keep her from losing the assets she needs to live on.  Some conditions require a guardian to be able to admit the incapacitated adult for medical or mental care over the protest of the ward.

Dealing with incapacity at any stage is never easy, but a guardianship is not usually the first choice. If you are wondering about options for you or a loved one, a good first step is to consult with an attorney who practices in estate planning and guardianships in your state.

Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Fiduciary Boot Camp – Multiple-Party Accounts

by Jonathan A. Nelson

When it comes to fiduciary administration, few things appear so deceptively simple as multiple-party accounts. 

What is a multiple-party account?  This is the term the Virginia Code uses to encompass joint accounts and pay-on-death (“POD”) accounts at banks and similar institutions; it does not apply to most brokerage or investment accounts.  From the banking side, these accounts are straightforward and low risk to the bank: when a person dies, the survivor(s) of a joint account and the beneficiaries of a POD account can be given full access to the funds without creating any liability for the bank.  Because of this liability shielding, my experience is that banks far prefer having an account set up this way, compared to the bank’s risks and delays if the account ends up as a probate asset of a deceased account holder.

Unfortunately for everyone who isn’t the bank, this is not the end of the story.  The complexity starts with Virginia Code § 6.2-619, which states that everyone on the multiple-party account bears a fiduciary obligation as under the Power of Attorney Act to everyone else on the account as to the others’ interests in the account.

During the lifetime of the other account holders, this can mean obligations to explain transactions.  While understandable and probably fine between mom and an adult child she lives with, if mom starts to lose capacity, the obligation to provide information can expand to distrustful siblings; if instead of being set up as a multiple-party account, the account was titled with the caretaking child having access through a separate power of attorney, that power of attorney could exclude the troublemaker siblings from a right to demand mom’s financial information (but does not release the agent from fiduciary duties).

On the death of a multiple-party account holder, not only does that fiduciary duty continue as to the funds, but Virginia Code § 6.2-611 further provides that the decedent’s interest in the account is still available for satisfaction of the decedent’s debts.  There is something of a presumption that a joint account is held 50/50 between two account holders, but that  a court hearing can be held to define each party’s ownership of the account by taking evidence of contributions and expenses.  For a POD account, the titling itself provides the presumption that the decedent contributed all of the funds in the account.

The process of clawing back the account’s funds involves the executor or administrator of the decedent’s estate suing the survivors/beneficiaries on the account (and the bank, if the funds are still held by the financial institution) and then proving the amount needed to satisfy the estate’s debts.  Since those debts include the attorney fees to claw back the account, a contested suit can quickly destroy any benefit to the survivors or leave them having to pay back money they have already spent.

What are the takeaways from this information?  Listen to your attorney or financial planner regarding how to title your accounts, even if your banker says he has an “easier” way.  While the account setup may be more complex, you will usually end up with better planning and more flexibility in handling future uncertainties.  I can also say from experience that it is a lot easier to tell beneficiaries they are getting less than they thought because the executor had to pay debts and expenses than to tell them they have to chip back in money they already hold; this is especially true if it takes a lawsuit to resolve this obligation.

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Lessons from Litigation: Accepting Powers of Attorney

by Jonathan A. Nelson

A power of attorney is an important and powerful tool – if an adult person (the Principal) can’t take care of everything for himself, or be in two places at the same time, he may wish to designate to another person (the Attorney-in-Fact) the authority to act on his behalf.  In order to facilitate and encourage the acceptance of powers of attorney, Virginia law includes a number of statutory protections allowing third parties to rely on powers of attorney without having to verify that the power is not void or terminated or the agent is properly using his authority, and even requires the third party to pay attorney fees if they unjustifiably refuse to honor a power of attorney.

But who bears the risk of a power of attorney being fake?  The Virginia Court of Appeals dealt recently with a forged power of attorney, in Robert K. Harwood, L.C. v. Chinchilla.  As reported, Juan and Rossemary executed limited powers of attorney allowing their brother-in-law Carlos to manage particular investment properties in Virginia.  Carlos took a genuine signature page, attached it to a new power of attorney granting him authority to mortgage the property, and took out a series of loans on the property and ran through the money.  A lender initiated foreclosure and the homeowners filed suit to invalidate the loan and deed of trust.

The decision itself turned on a single word in the statute – the Uniform Power of Attorney Act protects third parties if they rely in good faith on a power purportedly verified by a notary, while Virginia’s version of the statute dropped the word ‘purportedly’ and expressly excluded the third party protections where the signature was ‘forged’.  Finding that attaching the signature page to another document constituted forgery by Carlos, the Court ruled the signature on this document had not in fact been verified by a notary; accordingly, the lender bore the loss for having accepted the forged document rather than the homeowners for having had their signatures forged.  Because this result is specific to Virginia’s statutory language, it is important to note that other states may come to the opposite result.

The practical result of this decision will no doubt be increased scrutiny of powers of attorney by Virginia financial institutions, title companies, and others asked to accept these documents.

As the push grows for AI and digital signatures, seeing the wet ink originals may prove more important than ever; as is consulting with attorneys well-versed in your state’s case law and who oversee the preparation and the signing of these documents, to ensure they can be verified.

Please reach out if we can be of assistance.

Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Lessons from Litigation: Can You Make Joint Wills?

by Jonathan A. Nelson

Occasionally, I get a question about whether a husband and wife creating a joint estate plan should have one will or two.

A joint will has been legally possible in Virginia since the 19th Century. Although I am not aware of any joint wills other than between spouses appearing in our case law, the case law also does not require marriage or any other similar relationship between the parties.  As a practical matter, the original of the will is admitted to probate on the death of the first as to the property of the first, and then it is re-admitted by reference on the death of the second as to the property of the second.

For a number of practical reasons, however, joint wills are generally inadvisable.  The execution of the document is easier to make a mistake on, whether in having the correct number of witnesses (neither testator counts as a witness) or in the self-proving affidavit correctly setting out what was done.  If the surviving testator changes the county or state of his residence, it will make obtaining and probating the document difficult and may require litigation to establish the will, since the original is already held by another court.  Furthermore, it requires the surviving testator’s executor to know both that the will has already been probated and that it is still the last will of the testator; an error as to either can require costly litigation to correct.

The joint will also requires great care in following its terms, particularly as to property conveyed from the first testator to the second, as that property would no longer be subject to a gift made only by the first testator even if there was a contingent beneficiary for that property; again, ambiguities or questions of interpretation are fertile grounds for otherwise avoidable litigation.

The case of Williams v. Williams, 123 Va. 643 (1918), involved more than a century ago what is perhaps the strongest reason to avoid a joint will:

The joint will itself is still revocable by the surviving testator as to his own property.  Accordingly, it does not provide any protection to the first-to-die that the survivor will retain those terms.  However, the fact that it is a joint will is always going to raise the question of whether the joint will was also a mutual contract to establish a will, which can be enforceable. 

Rather than creating this question (which may only be resolvable by litigation), it is almost certainly preferable to set out the contract to establish a will as its own unambiguous document (or incorporated in the document that includes the consideration for the contract, such as in a premarital agreement), and execute separate wills which can more readily be judged to satisfy the contract or not.

A joint estate plan that provides both certainty and flexibility, while avoiding preventable legal conflicts, requires an experienced estate planning attorney who can carefully balance the individual circumstances of the family, understand the goals, and put in place the instruments that accomplish them.

Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Trusts 101: Kinds of Trusts (Part 2)

by Jonathan A. Nelson

I previously wrote about some types of trusts that are used for estate planning and otherwise.  Many estate planning trusts have probate avoidance as a primary purpose, although they may have other benefits, such as providing for financial management in the event of incapacity.  There is a specific subset of planning around federal and state (for states that have one, unlike Virginia) estate taxes.

Below is a distilled look at some of the broad concepts and terms used in these tax planning tools.

Credit Shelter Trusts hold assets to maximize a surviving spouse’s use of the estate tax exemption.  Generation Skipping Trusts give assets to the grandchildren’s generation to limit the estate tax on the children’s generation, and can act similarly to a QTIP (discussed in the previous post) by giving income to the children’s generation.  An Irrevocable Life Insurance Trust (ILIT) makes a small gift now that allows a larger payout that does not count toward the Estate Tax exemption, in the form of life insurance proceeds.

 Lifetime gifts to a Grantor Retained Annuity Trust (GRAT) of assets expected to appreciate can allow lifetime income and a low amount claimed on a gift tax return, based on the value of the asset minus the present value of the annuity, leaving more of the estate tax exemption for other assets.  This and other mechanisms for completing gifts before death do have downsides – they still count toward the total estate tax exemption if already valuable, and you do not get a step up in basis at death if they have appreciated since acquisition.  An Intentionally Defective Grantor Trust (IDGT) tries to reduce these downsides by selling instead of gifting, paying taxes with non-gifted funds, and allowing substitution of properties to maximize the effect of the step up in basis on property outside the IDGT.  As a brief aside, the statutes and IRS rulings try to uphold the principle that the step up in basis is really to prevent double taxation of assets which are subject to the federal estate tax (even if the size of that tax's exemption prevents taxation for most people); put another way, for every asset left behind by a decedent, it should get either a step up in basis or avoid counting toward the estate tax exemption, but not both.

 A Crummey Trust is set up to accumulate the annual gift tax exemptions for a number of beneficiaries by giving beneficiaries an annual option (which they should not take!) to take money from the trust, thereby making at the end one large gift without it counting toward the overall estate tax exemption.  If one spouse is not a U.S. citizen, a Qualified Domestic Trust (QDOT) may be needed to avoid the lower estate tax exemption and loss of unlimited marital transfers for non-citizens.

Charitable strategies to reduce the taxable estate with qualifying gifts but maximizing certain returns to beneficiaries can include Charitable Lead Trusts (an annuity to charity then gift to family) or Charitable Remainder Trusts (the reverse).  There are enough variations in charitable trusts that a separate post is warranted for more detail, and sometimes it is sufficient to just use a charitable ‘safety valve’ that gives to charity what would otherwise be a small amount over the estate tax exemption.

With the federal estate tax exemption change in the One Big Beautiful Bill allowing a married couple both dying in 2026 to pass $30,000,000 to beneficiaries before the tax starts to apply, fewer people need to use trusts for estate tax planning or managing their taxable estate. 

When needed, this planning can be very complex to set up and exacting in its administration.  It requires a knowledgeable estate planning attorney, and that attorney will likely need to be in close contact with your accountant and other financial professionals.  It also requires updates and upkeep more frequently than most other estate plans.  However, the consequences of failing to make and maintain such plans can be significant tax bills, and they may be timed in a way that requires liquidation of assets (such as real estate or a family business) which were intended to provide continuing benefit to your survivors.

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Trusts 101: Kinds of Trusts (Part 1)

by Jonathan A. Nelson

We have written in some detail in this series about using trusts for estate planning, with a particular focus on post-death planning.  But the concept of a trust is very useful in a lot of contexts.  What are some kinds of trusts, and what do some of the funny sounding names mean?  The following list is not exhaustive and is meant to be very high level.   Particular pieces may be treated in more detail in future posts.  Estate tax planning is a specialized enough field that the trusts associated with it will be discussed in a separate post as Part 2 of this topic.

What is a Trust?

 At the most basic level, a trust occurs any time a person (called the Grantor or Settlor) conveys an asset to a person (the Trustee) subject to terms that benefit a person (the Beneficiary).  Even though the Trustee has legal title to the asset, the law holds the Trustee to fiduciary duties (a high degree of ethical conduct discussed here), to ensure that the asset is used pursuant to the terms of the trust. The law also protects the asset from the Trustee’s creditors because it isn’t really the Trustee’s asset.

 A trust is not a legal person in the same way a corporation or an LLC is, however.  It can only sue or be sued in the person of the Trustee, and the death or incapacity of the Trustee can lead to automatic succession, whereas an LLC may require a member meeting or even go through probate if the succession is not established beforehand.

Trusts Outside Estate Planning

Trusts can be useful in many contexts.  In a divorce, a trust may be an effective way to make sure that college tuition or life insurance benefits the children without just giving money to the ex.  Most people buying a house will sign a Deed of Trust in which they irrevocably appoint a Trustee to keep them from defaulting on their mortgage by selling the house and paying off the bank if they do not make their own payments on time.  There is an interesting line of cases in Virginia dealing with that Trustee’s fiduciary duties to the homeowner, since the homeowner is both the Grantor and a Beneficiary of the trust.

 A small business may be more efficiently run if one active Trustee holds the voting power of a group of less involved shareholders.  (In fact, pooling voting power is so useful that Virginia allows a ‘Business Trust’ to register as a legal entity, in an exception to what I said about legal persons above.)  A ‘Land Trust’ holds land and can aid in conservation or land use management, governing a group of investors, reducing premature disclosures while development plans are in the works, or providing continuity for a particular operation like a farm.

Trusts for Asset Protection

One clause frequently used in trusts is a ‘spendthrift clause’.  This is a direction to the Trustee to prevent payment to a beneficiary’s creditors, and is important to protecting the trust from downstream anticipation of benefits invading the benefit (or asset) meant for the beneficiary alone.

Where the Grantor and the Beneficiary are the same person, however, the question is whether the trust can in fairness be interposed to avoid paying creditors.  Although self-settled spendthrift trusts can be created and used effectively, they are intentionally cumbersome and difficult to control to reduce the temptation for overuse.  For example, they usually need to be in place for five years before they provide any protection, and the Trustee must be true third party.

A particular application of this is the Medicaid Planning Trust.  Here, one’s assets are sufficiently removed from personal ownership and direct control in order to qualify for long term care through Medicaid.  For the reasons above, these are difficult to set up correctly and benefit from a high degree of attorney involvement in the creation and administration.  In addition, it is a lifestyle decision, and checking which local facilities take Medicaid before setting up such a trust may be helpful in deciding whether it will be advisable for you.

Trusts for Estate Planning

A trust can be created by a will (called a Testamentary Trust); in Virginia, these tend not to be used heavily since they occur inside probate and can significantly increase the time and expense of probate.

As hinted at above, the Grantor, Beneficiary, and even the Trustee can be the same person unless otherwise prohibited by law. This combination allows the major use of trusts as an estate planning tool – the revocable living trust whereby the Grantor retains essentially unfettered control of his or her own assets, but can still avoid probate with very little paperwork.  There are many variations possible.

A joint revocable living trust allows a married couple to create a unitary estate plan that is less dependent than individual wills on the happenstance of which spouse dies first.  For spouses with separate resources or beneficiaries, options exist on how those are treated in individual or joint trusts, and can include a Qualified Terminable Interest Property (“QTIP”) provision that provides care for a surviving spouse but not the ability to invade the eventual inheritance.

Some trust terms are self-descriptive.  A Trust for Minors is exactly that.  A Pot Trust holds family resources in a common pot for use according to need, in a sort of rough facsimile of your having lived longer, and it is only later that the unused portion is divided into individual shares.  A Pet Trust provides resources and oversight to ensure beloved animals live out their days in the manner you desire.  The term Legacy Trust tends to be used to describe a long-running trust, often holding assets through at least one generation, in an attempt to build wealth rather than facilitate spending, and the term Dynasty Trust typically refers to trusts holding assets for more than one generation, often (but not always) involving estate tax planning, discussed in the next post in this series.

Trusts Which Intersect With Estate Planning

Special Needs Trusts (sometimes called Supplemental Needs Trusts) are designed to keep challenged or medically vulnerable beneficiaries from being accidentally disqualified from the public benefits they may depend on.  If any of the beneficiary’s assets went into the trust, Medicaid can require reimbursement of lifetime expenses from the trust, so a special needs trust intended to administer an inheritance and then pass the unused portion to other family has to be careful about the sources of funding.

Finally, a Totten Trust is more commonly called a transfer-on-death or payable-on-death designation, but it involves the asset holder acting as a trustee for your instructions to transfer the asset as directed.

This post runs through a lot of detail quickly, but the most important thing to understand is that these tools are right for certain jobs, but there are no one-size-fits-all solutions.  Talking through the pros and cons with an experienced estate planning attorney will help make sure you are taking the correct steps to handle your assets in ways that best meet your goals, handle your foreseeable challenges, and benefit those you care about.

Next time in Trusts 101: Kinds of Trusts (Part 2)

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Lessons from Litigation: The Litigious Family Member

by Jonathan A. Nelson

Four years ago, the Virginia Supreme Court described the course of the Galiotos family estate and trust matters as the “brothers’ prolonged disputes.”  Since that time, those brothers have gone through seven more appeals, two dealing with the distribution division and five dealing more or less with the various court orders attempting to sort out the parties’ litigiousness, the last having been ruled on this past week (October 21, 2025).

The point of this post is not to sort out the finer points of the Galiotos dispute, but to point out that when creating or updating your estate plan, it is wise to anticipate potential problems and take steps to reduce the opportunities for your family to be torn apart by the very decisions meant to benefit and bring them together.

       1.       Avoiding Grounds for Ill Will 

Every family situation is different – there are no one-size-fits-all solutions in estate planning.  Terms that are practical for an only child may cause problems among three siblings with varying expectations, and wholly wrong for an estate plan where extended family will try to exert control.

That said, sometimes the provisions themselves raise problems. In my experience, otherwise reasonable beneficiaries are more likely to involve attorneys and courts when the terms favor secrecy, insulate the trustee from accountability, give ambiguous or voluminous instructions making it difficult to assess whether the trustee has been faithful, excessively withhold input and control from beneficiaries, and provide insufficient flexibility for unanticipated situations and events.

The choice of a trustee is also very important. A trustee with an overbearing personality may harm relationships with beneficiaries; an indecisive individual can hamper the effectiveness and timeliness of your trust’s administration.  If that person is still your choice, you may need specific terms to ameliorate those tendencies.

       2.       The Known Litigious Person  

Sometimes people you care about are already contentious or litigious.  My experience is that avoiding this issue does no one any favors.  There are estate planning tools you can consider, from carefully crafted no-contest clauses to distributions conditioned on waivers to using third party fiduciaries.

For the documents themselves, it is particularly important that an estate plan not create easy opportunities for litigation.  This means there is often a premium on the documents being shorter to avoid terms open to interpretation. It may also mean forgoing complex provisions and lengthy administration in favor of dividing the pie and allowing each to go his or her own way.

It is also important, regardless of the other mechanisms used, for your estate planning attorney to create robust contemporaneous documentation showing your documents set out your wishes.

       3.       Recognize That Sometimes Court is the Only Option

The basis of the observation from Federalist Paper 51 that “if men were angels, no government would be necessary” is no less true in estate planning.  Regardless of the care in assembling an estate plan, any of the people involved could step over a line.  In that case, outside resolution (often through a court) may be the only means of correcting it. 

An estate plan is a balance of probabilities, but is best served when it includes accountability, appropriate tools for administering efficiency while encouraging faithfulness to you and your beneficiaries, and the means of dealing with the unexpected – even in the face of a beneficiary’s, fiduciary’s, or outsider’s greed, intractability, self-importance, or obstreperousness. 

Going back to the Galiotos family, one piece of the dispute involved a trustee brother refusing to turn over financial information about a business he had been running but which the court found the other brothers were to become partners in. The court ended up being the necessary remedy. It seems to me that an estate plan designed to shield that fiduciary from having to make such disclosures or from the court compelling the same would not be the right answer.

Addressing difficult topics in advance – especially with an attorney experienced in both estate planning and estate litigation – may be the best way to ensure your intentions are not subjected to “prolonged disputes.”

Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Mom Died – What Do We Do Next?

by Christopher S. Woodruff

When a parent passes away, it can feel like a million different things are pulling at you. What comes first?

First: Mourn

Outside unusual circumstances (see note below), there are no legal steps that require action within the first week of passing. Many of the first steps require a death certificate, which takes at least a few days to receive (and sometimes much longer). Properly mourning and grieving the loss of your loved one is more important than legal or administrative details. Everyone processes grief differently, and in many cases, mourning begins well before the date of death. But, especially if the loss was unexpected, it is important that you take the time work through your grief.

Second: Connect with Loved Ones

Hopefully, this goes hand-in-hand with mourning. The death of a parent is often an opportunity for family members to reconnect, focus on what brought them together, and share the experience of the life and loss of the loved one. Prioritizing and valuing those relationships can be really healthy for you, personally. It can also make the steps that follow much, much easier.

Third: Find the Documents

In a perfect world, your loved one made it easy for you to find and access their documents before his or her death. If not, locating the original Will or Trust is an extremely high priority. In conjunction with this, you want to look for documents that will reveal the situation you and your loved ones are facing. Prior tax returns, financial statements, bills, real estate tax status, 1099’s, and insurance statements are all immensely helpful in determining where things stand, who should be responsible, and what the next steps are to properly manage the loved one’s affairs.  

Fourth: Visit an Experienced Probate Attorney

Regardless of the circumstances, after a death, there are meaningful legal and tax issues that need to be addressed. In some circumstances, there are immediate deadlines that are critical. In other circumstances, unbeknownst to the family, tens of thousands of dollars are at stake if you do not move quickly enough.

(Note on unusual circumstances: there are occasional issues that require moving quickly, and involving an attorney right away can be important.  Examples we have run into include where the loved one ran a small business with employees or owned a farm with livestock, where the loved one was in the middle of court proceedings or facing a foreclosure, and where relationships between survivors were already past the boiling point.)

In many cases, an attorney’s services do not need to exceed an hour or two, and can be done in the context of an estate planning update. In other cases, there may be complexities that the family does not realize, and meeting with an attorney early in the process can save thousands of dollars, years of hassle, and costly litigation or penalties. A knowledgeable probate attorney can guide you on the correct steps forward, save you time, money, and future headaches, and put your mind at ease.

If your loved one resided in Loudoun County, Fairfax County, or another area of Northern Virginia, we would be honored to assist you in understanding the probate process and determining the next steps.  Please call us at (703) 777-6084 or fill out our contact form.
  

Christopher S. Woodruff is a member of the Virginia State Bar and has been licensed to practice law since 2016. Mr. Woodruff’s practice focuses on estate planning and the administration of trusts and probate estates. A passionate advocate for children and families, Chris brings extensive experience walking with people who are experiencing grief, trauma, and complex family situations. He provides patient, insightful, and tailored solutions to his clients.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Coming Post: Types of Trusts

by Jonathan A. Nelson

There are certain questions which do not keep me up at night, including:

— If Snoop Dogg was getting an estate plan, would it include a pot trust?

Estate planning attorneys sometimes use shorthand names like ‘pot trust’ for complex planning tools.  Curious what some of them are?  With summer over, stay tuned to this blog for this content and more in the coming months.

Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Estate Planning in Practice: Reasons Not to Have a Will

by Jonathan A. Nelson

We wrote recently that there are times when a trust isn’t the best tool.  But are there times when you shouldn’t even have a will? 

 As one who is frequently counsel to the survivors, I want to say unequivocally, “Of course, everyone should have a will.”  But what reasons do I hear people give, and what do I think of those reasons?

 1.       “A will provides no benefit to me.”  Superficially, this is true – you have to die before a will takes effect, so what good does it do you?  Without going too deep into philosophy, a will makes sense for people who see themselves as part of a community that is larger than themselves, including the future community this legacy connects them to.  Thinking about how you want your assets distributed can be a useful exercise to assessing who and where your community is, or could be.

2.       “I have no obvious beneficiaries.”  In conjunction with the previous item, this may be a good time to think about the relationships you can build. Naming beneficiaries under a will is in your control, and can include friends and neighbors, particular extended family members, godchildren, your house of worship, and charities doing work you care about.  If you do not leave a will directing where your assets go, your state’s default provisions for descent of property may not be what you would have picked or may divide the estate in so many directions that administration of the estate becomes burdensome.

3.       “My life is too much in flux right now.” There is rarely an estate plan that will never need to change, and waiting for the right time runs a risk of “the right time” never coming along.  As life happens, sometimes the plan requires updates.  Occasionally we do prepare documents we know are temporary, but often who and what are important above all else don’t end up changing as much as people think, and putting in place provisions covering those while allowing for some contingencies is important planning.

4.       “My survivors will know what to do.” (or, “My survivors will do the right thing.”)  I have helped enough families through the estate process that I am just going to say it – if you want it done, write it down.  People misunderstand things, people have different opinions or assumptions from each other on what they think you would have wanted, and people may have memories of things said at different times that are not wholly consistent with each other or your current wishes.  Sometimes the unexpected means not all of the plan can be followed, and having a will with enough detail may be the only way to enforce what your highest priorities are.

5.       “Everyone is just going to fight about it anyway.”  There is a lot that can be done in a will (or other estate planning documents) to anticipate conflict and try to reduce the opportunities for strife to take root.  This requires an attorney willing to listen and able to find creative solutions, not just one who wants to fit the family into a prefabricated plan.

6.       “I don’t have enough assets.” With low enough assets, the will may not be needed for probate administration, but it can still be very helpful – if nothing else because it names someone to be in charge of the decisions that need to be made and to get the process started before unnecessary costs start depleting what assets there are.

7.       “Why write something if my creditors / back taxes / ex will take it all anyway?”  An estate you know will be insolvent can be one of the more difficult situations to plan through, and there are times when the best solution is for the named executor to walk away instead of qualifying.  However, it can still be prudent to give the right person the option of being in charge and seeing what can be done to help your loved ones, rather than just handing the reins to the creditors.

This list presumes a will crafted with reasonable skill – there certainly are times when a bad will is worse than no will at all.  But nearly without exception, even when there are minimal assets requiring administration, it is helpful to have a will naming someone to oversee decision-making. 

In summary, a will requires thinking beyond one’s own lifetime, and requires a certain humility and unselfishness to recognize the place one has in his or her community.  But it is an act of kindness to one’s survivors, and gives opportunities to impact one’s community and family in positive ways.  Taken as a whole, estate plan documents are a strong expression to your survivors of what your ultimate priorities are -- and that is worth a little thought.

Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.