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Do I need a will?

Everyone needs a will. Regardless of how much property you own, a will helps insure that your property is distributed according to your wishes and that loved ones are properly cared for. If you die without a will, you allow state law to determine how your property is distributed.

A will allows you to control where your property goes upon your death. Virginia, like all states, has laws specifying how property is distributed when someone dies without a will. These intestacy laws allow no consideration for your wishes or intent. They often require a distribution plan different from what an individual would want.

Many people assume that these laws will coincide with their wishes. This may not be the case. For example, married couples often assume that everything they own will go to their spouse if they die. However, in Virginia, if the deceased spouse had any children prior to the current marriage, those children will receive two-thirds of the deceased spouse's property. The surviving spouse is left with only one-third of the deceased spouse's property, even if the children are adults. Using a will, a married couple can ensure that all property will pass to the surviving spouse.

In other situations, if a person dies without a will their entire estate could pass to the state. A will can prevent this result.

The intestacy laws also make no allowances for any special circumstances. For example, if you are responsible for the care of a friend, sibling, parent or distant family member, there is a good chance they will not be provided for if you do not have a will. Similarly, the intestacy laws do not allow gifts to churches or charities. Such gifts must be made by will.

In addition, the law in effect at the time of death controls distribution. State legislatures frequently amend intestacy laws. Therefore, even if current laws would distribute your property according to your wishes, they may not at the time of your death. A will can lock in your distribution plan.

A will gives you the opportunity to choose a guardian for your children. If you do not have a will and your spouse dies before you do or you both die in a common accident, it will likely be up to the court or its clerk to appoint a guardian for your children. To avoid this, you can name one or more guardians of you children in your will. Naming a guardian not only ensures that you get to make your wishes known as to who raises your children, it also can mitigate a custody fight if more than one person wishes to take the children.

A will allows you to designate alternatives for administering a child's property. Under Virginia law, individuals under the age of eighteen are not legally competent to manage real or personal property (including money). If you die without a will and property passes to a minor this property will be managed by an individual appointed by the court or its clerk. There are problems with this arrangement. First, the individual appointed to manage the property may not even know the child or his needs. For example, a bank could be appointed guardian of the property.

In addition, the property is turned over to the child at age eighteen. Regardless of the amount of property or maturity of the child, the child can use it for any purpose.

A simple and inexpensive way to deal with these problems is to include a contingent trust in your will and specify that any money passing to minors will be held in this trust. You can name one or more trustees to manage the property and make distributions to child. You can also determine the amount of discretion the trustees have over the property. The trustee can make decisions regarding the property and can make distributions for the child. In addition, you can specify the age at which the property will be turned over to the child.

Another method for addressing these problems is to specify in your will that any property passing to minors be managed pursuant to the Uniform Transfers to Minors Act. This acts allows you to designate a custodian to manage the minor's property without court intervention and without costly filing requirements. It also allows you to specify that the property not be turned over to the child before he is age twenty-one.

Keep in mind that, although you do not have minor children, a portion of your estate may pass to a minor. Parents of adult children may fail to consider the possibility that their child may predecease them and their property may pass directly to minor grandchildren. Similarly, in certain circumstances property could pass from aunts and uncles to minor children. Individuals other than parents with minor children should consider including provisions in their wills to address the problems associated with property passing to minors.

Properly drafted wills can result in significant estate tax savings. There are many mechanisms for saving on estate taxes. Most of these require pre-death planning. Often, a will is the best way to implement these mechanisms. In addition, you can use a will to direct which portions of your estate will be used to satisfy estate taxes. There is little that can be done after an individual's death to alleviate estate tax burdens. However, a properly drafted will can result in significant savings.

A will allows you to choose who administers your estate. If you die without a will, the court will decide who administers your estate. However, you can appoint an executor in your will, thereby determining who will administer your estate. Most people prefer to choose the individual to handle this important task. People often appoint spouses, children or a trusted friend.

If you already have a will, you should occasionally have it reviewed by an attorney. Your will may need revisions if, since it was drafted, you have had children, been married or divorced, experienced the death of family members (especially a spouse), moved to a new state, or acquired or disposed of large amounts of property. In addition, even though your situation may not have changed, changes in tax law may mean that an attorney could identify ways to modify your estate plan that could save significant estate taxes.