The Last Will and Testament

 

 

 

 

 

 

Article written by Eldridge Blanton, Esq.

Wills are legal instruments used to transfer property upon one’s death. The person who creates the Will is referred to as the testator (fem. testatrix), one who makes a testament.

The person (or entity) who carries out the terms of the Will is the executor (fem. executrix), one who executes the Will.

There are numerous ways to transfer property without using a Will. For example, a joint bank account will transfer to the other person on the account when one of them dies. In like manner, a joint stock account will transfer to the other co-owner, although brokerage firms will usually insert the word “survivor” to clearly indicate that the account goes to the survivor upon the first death. Retirement accounts (IRAs, 401(k)s, etc.) will have a beneficiary, as will life insurance policies. In all of these examples, the joint ownership or beneficiary designation will trump the provisions of the Will.

If property does pass via one’s Will, that means that the local probate court will be involved. The clerk of the court will inspect the Will for proper witness signatures, notary stamps and anything that might appear irregular. If the Will passes muster with the court, the next step is usually to the Commissioner of Accounts, a lawyer appointed by the court, who will supervise the process to ensure that all creditors are paid and that the Will provisions are carried out. Some estates (those under $50,0000) will fall under the “Virginia Small Estate Act” and the process will be significantly shortened.

A Will does nothing while the testator is alive. A Will “speaks” at death.  If the testator becomes incapacitated, he/she will have to rely on a power of attorney for financial decisions and a Virginia advance medical directive for healthcare matters. In the absence of these documents, a family member will have to petition the court for appointment as guardian for health related matters and conservator for financial ones. This is sometimes referred to as “living probate” because the court will be involved for the rest of the person’s life (or for the remainder of the person’s incapacity).

In recent years, living trusts have come into widespread use as a “Will substitute.” Living trusts can hold title to property and can pass the property to family members without the intervention of the probate court. It’s a private process whereas Wills are public records. Whether one uses a Will, a living trust or any of the other methods, it’s VERY IMPORTANT to affirmatively document your wishes and not leave your family to sort out your affairs after your death.