Comprehensive Planning. Lifelong Solutions.

The Dangers of Doing it Yourself

By Sarah Schmidt, Esq.

Due in large part to the ever informative Google search bar, estate planning attorneys often see clients who undertake to draft or revise their own estate planning documents  (or leave written instructions to their executor) in an effort to save a few dollars on attorneys’ fees. While it is true that a holographic (i.e., handwritten) will can be a valid will admitted to probate in the Commonwealth of Virginia, there are far too many instances in which handwritten notes—regardless of the writer’s intention—cause more harm than good.  Indeed, a simple codicil (an amendment to a will) or an entirely new will can cost ten times less than what it would cost to petition the court to have the note declared a will or an amendment to a testator’s will after death.

For example, imagine your father passed away and you find two documents in his safety deposit box. First, a simple will leaving everything to his “descendants.” Second, a handwritten note which states, “I wish to remove Sam named as my son entirely from this will—no benefits.” The note is initialed and dated after the date of the will. So what is an executor to do? Does Sam receive anything from the estate? The problem is now that your father has passed away, one can only look to the evidence to attempt to determine whether he intended to modify his will or whether he was simply leaving a handwritten note.

Unfortunately, absent a private agreement amongst beneficiaries, there is only one way to find out—submit the writing to the court and argue your position. Indeed, a note which was very similar was submitted to the Chesapeake Circuit Court probate clerk for probate. The clerk found that the handwritten note was not a validly executed codicil, and the executor of the estate appealed the clerk’s order to the Circuit Court where litigation ensued. The case was ultimately appealed to the Supreme Court of Virginia. The Supreme Court held that the records supported the Circuit Court’s ruling that the writing was not a codicil, nor intended to be a codicil. See Irving v. DiVito, 294 Va. 465 (2017).  Regardless of whether the decedent intended the writing to be a codicil or just a handwritten note, there is absolutely no question that the litigation over the writing cost a significant amount more than a new will or codicil would have cost.

Whatever you do, do not write on your estate planning documents and do not leave handwritten notes without consulting with your attorney. When in doubt, always seek the advice of your attorney.

Ask Kit Kat: Victories for Animals

Hook Law Center: Kit Kat, what can you tell us about the latest victories that animals have won recently to protect their rights?

Kit Kat: Well, this is indeed something to shout about! The two most notable were in California and Florida. Florida I have already talked about in a previous article. Greyhound racing will finally come to an end there in 2020 when dog racing is no longer required at racetracks to keep gambling open. Florida has 11 of the United States’ remaining 17 greyhound tracks. The remaining 6 are not likely to survive on such a small scale.

Which brings us to the victory in California. This is truly something to celebrate, because California is such a large state that its decisions affect a large audience. With the world’s 5th largest economy, this change in culture is bound to have a huge impact. On Nov. 6, 2018, 62% of the voting public approved a measure called Proposition 12 making it illegal to sell eggs, pork, and veal from any farm which cages baby calves, pigs nursing piglets, and hens which are producing eggs. The so-called factory farms have been dealt a huge blow.  This means, that any products raised in California, which treat baby animals inhumanely, will not be allowed to be marketed in California.  This is extremely important, because California tends to be a trendsetter, and it has such a huge population. The egg and meat industries were against Proposition 12, but the Humane Society of the US and other groups lent their support, and they triumphed! (Karen E. Lange, “Voters demand landmark changes for animals,” All Animals, January/February 2019, p. 10-11)

Posted on Wednesday, January 30th, 2019. Filed under Senior Law News.

Estate Planning After Tax Reform

By Jennifer Rossettini, CFP®

It has been a little over a year since the 2017 Tax Cuts and Jobs Act was signed into law. Although many of us do not yet know how the changes will affect our personal income tax returns this year, there is some certainty as to how estate planning and estate taxes are affected – at least until 2026, when the new and higher estate tax exemption will revert to 2017 levels. For now, the estate and gift tax exemption is $11.4 Million per individual. This means that a person can gift or bequeath up to $11.4 Million without incurring an estate or gift tax. What did not change with the Act are the rules involving income tax basis for gifts and inherited property. What this means is that the donor of a lifetime gift of an asset also transfers their tax basis in that asset to the donee. On the other hand, a decedent’s gift at death causes the basis to be stepped up (or down) in the hands of the heirs to the fair market value as of the date of death. Although roughly 99 percent of Americans will not owe a transfer tax, careful planning is needed to ensure their loved ones do not incur significant income taxes when they sell property they receive as a gift or inheritance. Careful planning, or planning changes, could also be needed to unwind some of the estate tax planning techniques that were written into older estate plans.

For example, many estate plans for married couples drafted before 2010, when the federal estate and gift tax exemption ranged from $600,000 in 1997 to $3.5 Million in 2009, included provisions for the creation of a “credit shelter trust” (sometimes referred to as “family trusts” or “bypass trusts”) upon the first spouse’s death. In order to preserve the first spouse’s exemption, the first $600,000, for example, of the deceased’s spouse’s $2 Million estate funded the credit shelter trust, and the balance of $1.4 Million passed to the surviving spouse. In 2019, that same $2 Million estate would pass entirely to the credit shelter trust, leaving nothing within the control of the surviving spouse. Not only that, but property held in credit shelter trusts generally does not receive a stepped-up basis when the surviving spouse dies. This will likely cause the descendants to have to pay income tax on capital gains from the subsequent sale of assets.

Although there are some good non-tax reasons for having a credit shelter trust in place, it is worth the effort to have older estate plans reviewed to make sure this approach still meets your needs. If the first spouse has already passed away and you find yourself with a funded credit shelter trust, there are some options for unwinding the otherwise irrevocable credit shelter trust. For example, depending on the terms of the Will or Trust giving rise to the credit shelter trust and the intent of the deceased spouse, the credit shelter trust can be rescinded as long as all of the beneficiaries of that trust agree and/or a court order is obtained.

As with any significant changes in the law or in life, it is important to dust off that estate planning binder and have your documents reviewed by an experienced estate planning attorney.

Ask Kit Kat: Boy and Dog Reunited

Hook Law Center: Kit Kat, what can you tell us about the boy from North Carolina who has cancer, is now in Utah for treatment, and was reunited with his dog recently?

Kit Kat: Well, this is a feel-good story, if I ever heard one! Perryn Miller is an 8-year old boy from North Carolina who was visiting family in Salt Lake City, Utah over the holidays. While in Utah, Perryn experienced some extreme headaches. After a trip to the emergency room, it was discovered that Perryn was suffering from stage 4 glioblastoma, an advanced form of brain cancer. He had surgery right away, but the family has chosen to stay in Utah for more treatment. All was going well there, but Perryn was heartsick about not having his 8-month old German shepherd named Frank with him. His grandmother who lives in Spotsylvania County, VA, which is south of Fredericksburg, VA, sought help on Facebook about the logistics of transporting Frank to Utah, so Perryn and Frank could be together.

To the rescue came Bob Reynolds of Ladysmith, VA. He didn’t know the Miller family, but he wanted to help. Bob’s working history had included being a long-haul truck driver and a summertime ranger at Yellowstone National Park. The thought of a long distance trip did not daunt him. So he set out on Jan. 3, 2019 at 4:30 AM from Ladysmith and arrived in NC at 10 AM to pick up the dog Frank. 52 hours later (Jan.5), they had made it all the way to Salt Lake City! Bob said Frank was the perfect rider. He played with his toys or napped, and if he had to go to the bathroom, he’s nudge Bob’s right arm. When the duo drove into the driveway of the home where Perryn and his family were staying in Utah, Frank walked right up to the front door, like he’d been there hundreds of times. When the Millers opened the door, Frank “just went crazy,” according to Bob. Bob has even volunteered to take Frank back home, when the time comes they feel they can return to North Carolina. Stay tuned to this developing story. (Adele Uphaus-Conner, “Man reunites dog with boy sighting cancer,” The Free Lance-Star as printed in The Virginian-Pilot, Jan.21, 2019 p,3)

Posted on Thursday, January 24th, 2019. Filed under Senior Law News.

Should I Have a Will or a Trust?

By Shannon Laymon-Pecoraro, CELA

Many clients come into the office with a preconceived determination of which estate planning documents they need. Some clients believe their plan is overly simple or that they have too few assets to consider a trust (or any estate planning tool for that matter). Other clients enter our offices having heard that they “must have a trust.” It is important to understand, however, that selecting the correct estate planning tool depends on each individual’s unique situation, and there is no one size fits all solution. Understanding the pros and cons of each document allows the client to determine which tool should be used.

The most common reason clients utilize a trust is to avoid probate. In Virginia, probate assets are those assets that fall into the estate and are controlled by the terms of a will or the laws of intestate succession. In simple terms, the assets that fall into a probate estate are those assets held by an individual at the time of their death that do not pass automatically to another person or entity at death.

When probate is necessary, basic costs of administration include recordation costs and probate tax (which are $1.33 per $1,000 worth of probate assets) charged by the court, costs of any necessary surety bonds, and the costs charged by the Commissioner of Accounts to review necessary filings.  As the value of the estate increases, so do the costs of administration. Many clients, as a result, desire to avoid probate to the greatest extent possible.

Attorneys often use inter vivos trusts (most commonly a Revocable Living Trust) to avoid probate. The most important part of the trust, however, is not the document, but funding. It is critical that after a trust is established that assets be retitled into the name of the trust or that the trust be designated as a beneficiary of the assets held in an individual’s name. How you accomplish such funding can be complicated, particularly when retirement accounts are involved. In the event funding does not occur, the asset will fall into the estate, and, as a result, attorneys often drafts wills that pass assets from the estate to a trust.Clients will also use a trust when control over assets would be beneficial. While some clients may desire control to ensure disposition of assets pass through the bloodline without interference, trusts are even more critical when there is a complex family situation. These complex situations often include blended families, family members with disabilities, or creditor issues.

If a client’s dispositive provisions and family situation are simple, a trust may not be necessary to avoid probate. Instead, an attorney may recommend updating deeds to provide transfers at death, holding assets with rights of survivorship, or completing beneficiary designations. With this approach, the assets will pass to the intended recipient outside of probate and a will is utilized as a fail-safe in the event an asset is not effectively transferred after the owner has passed.

Everyone, regardless of the size of his or her estate, should have an estate plan that provides for surrogate-decision making authority during lifetime (think Power of Attorney and Advance Medical Directive) and disposition of assets at death. To discuss which estate planning tools may be right for you and your family, contact the attorneys at Hook Law Center.

Ask Kit Kat: Repeal of Put Bull Ban in Missouri

Hook Law Center: Kit Kat, what can you tell us about Springfield, Missouri where the citizens recently overturned a ban of owning pit bulls or pit bull-mixes?

Kit Kat: Well, this is very interesting and sad at the same time. Pit bulls are not inherently vicious or aggressive dogs, but they have gained a reputation for being so, because many of them have been bred to engage in dog fighting as a sport or for profit. In October 2017, the city council of Springfield, Missouri by a slim majority had enacted a ban on anyone owning the breed. It was an unusual law in that the punishment for violating the law could be seizure of the dog and euthanasia. In less than a year (August 2018), this unjust law, was put on the ballot as one of many issues during the city election cycle. Breed-specific legislation (BSL) seeks to treat particular breeds of animals differently than others in their class. Unfortunately, this is not the only case of BSL in the country.

 It was a great day for pit bulls when the ban on owning pit bulls or pit bull-mixes was overturned by a whopping 68% of the town’s citizens. “This victory is the result of the  tireless efforts of a coalition of local advocates who took action to put this question on the ballot and give voters the opportunity to preserve their right to adopt any breed of dog they choose,” according to Andy Briscoe, Director of State Legislation, Central Region, for the ASPCA.  Hooray for the citizens of Springfield, Missouri!  (“Springfield, MO, Overwhelmingly Repeals Pit Bull Ban,” ASPCA Action, Issue  3, 2018, p.6)

Posted on Monday, January 21st, 2019. Filed under Senior Law News.

How to Navigate Life as a “Solo Senior”

By Emily Martin, Esq.

Most of us assume that our children or other family members will help take care of us when we get older. Many seniors rely on their spouse or children to help manage their finances, monitor their health, and perform everyday tasks that they are no longer able to perform themselves. However, for some seniors, this is not an option. In fact, almost 22% of seniors are “solo seniors” – those age 55 or over who are unmarried and do not have children living nearby.[1]

For this group, navigating the unique struggles of life as a senior citizen can be very difficult – especially if they do not have a plan in place.  If you feel that you may become a “solo senior,” there are steps that you should take now to prepare for what could happen if you are unable to care for yourself.

Reconsider Your Living Situation

According to a recent survey, more than half of “solo seniors” have no one to call if they are confined to bed or if they need someone to drive them home from a medical procedure. If this is a concern for you, you may want to consider changing your living situation. If you live alone in a house in the suburbs and you fall in the bedroom, for example, it could be hours or even days before someone discovers that you are in distress. However, if you live in a senior apartment or independent living community, you will be a part of a larger group of people who are also in your situation and who will be more likely to check in on each other.

Even if you decide to stay at home, it is important for you to build a network of people who will look out for you in the event that something happens. Whether you become better acquainted with your neighbors, get to know friends from church or a social club, or even hire a geriatric care manager to see to your needs, it is vital that you have a community around you who will be able to recognize that you need help and provide the help that is needed when the time comes.

Put a Strong Estate Plan in Place

Everyone over the age of eighteen needs (at a minimum) an advance medical directive and financial power of attorney. However, for “solo seniors,” this need is even more critical. An advance medical directive allows you to appoint someone who has the authority to make medical decisions for you and outlines your wishes for end-of-life care. A financial power of attorney allows you to appoint someone to manage your finances for you if you are unable to manage them on your own. Without these documents in place, if you become incapacitated, it may be necessary for someone to petition a court to become your guardian and conservator, so they can make these decisions for you – and that person might not be who you would have wanted making those decisions.

If you are a “solo senior,” you may be wondering who you can name on these documents. It is true that most clients name spouses or children, but other options include siblings, nieces and nephews, family friends, and even financial advisors and attorneys.  

Another decision to make is who will inherit your assets upon your death. Many “solo seniors” may consider leaving money to charities or nonprofit organizations. If this is the case, there may be special planning to be done and various documents to be taken into consideration. It is always a good idea to seek the advice of an experienced estate planning attorney when having these documents prepared.

There are many difficult decisions that seniors must make, and for “solo seniors,” these decisions can be even more challenging. It is important to make sure you have a plan now, so that when the time comes, you can enjoy your senior years rather than worrying about who will take care of you if something should happen. Building a network of friends, family, and trusted professionals such as financial advisors, elder law and estate planning attorneys, and geriatric care managers can help you transition smoothly into life as a “solo senior.”


[1] All statistics in this article are from the following source: Elizabeth O’Brien, A Solo Senior’s Guide to Happiness, Money Magazine, November 2018, at 53.

Ask Kit Kat: Bongos at Norfolk, VA Zoo

Hook Law Center: Kit Kat, what can you tell us about the newborn bongos at the Virginia Zoo in Norfolk?

Kit Kat: Well, until I had read the article about them, I was not really sure what bongos are. Bongos are critically endangered animals from eastern, western, and central Africa. They belong to the antelope species, but they have whitish stripes on their side and long, spiraled horns. In short, they are magnificent creatures. Norfolk is fortunate to have them. Bongos are herbivores, and as adults measure around 5 feet tall. They are endangered in their native habitat due to poaching, habitat destruction, and diseases common to livestock.

Two calves were born on Dec. 26, 2018 to two different mothers. Johnny was born to 12-year old Juni and Bob. Johnny is about 2 feet tall, and his weight is about 44 pounds. Later in the day, mother Jesi (a 3-year old) went into labor, but after having problems, was delivered  of her calf through cesarean section. Her calf is a female named Charlie. Charlie also is 2 feet tall, but her weight is about 48 pounds. Charlie has been bottle-fed, since Jesi is still recovering from her surgery. Charlie appears to be thriving with this mother-substitute.

The number of bongos in the Virginia Zoo’s Okavango Delta exhibit is now 8. Baxter was born in March 2018, and a female named Joy was born Dec.25, 2017. The zoo said no visitors will be allowed to see the newborn calves until they are bigger and stronger. They will keep the public updated as to the calves’ progress via Facebook. (Katherine Hafner, “Virginia Zoo gets a pair of bongos for Christmas,” The Virginian-Pilot, January 3, 2019, pg.3)

Posted on Friday, January 11th, 2019. Filed under Senior Law News.

Reminder to Follow My Own Advice

By Letha Sgritta McDowell, CELA

While discussing estate planning with clients, we often stick to the theoretical and the reason behind having certain legal documents in place; many times the clients focus on the documents themselves. However, attorneys are referred to as “attorneys and counselors at law” which means a portion of our practice is to counsel clients on best practices.  In particular, elder and special needs law often deals with client’s healthcare concerns and practices to ensure quality healthcare and different methods to advocate advocacy.  Often I have encouraged clients and their loved ones to be sure they take a second person with them to any doctor’s appointments or consultations to listen to the advice provided by the physician and to take notes about care and treatment options and to ask questions.  Recently, I failed to take my own advice and have since learned my lesson.

My spouse had seen a number of physicians over the last year about consistent pain he was having.  His condition remained undiagnosed, until we recently visited a friend in the medical field who provided her diagnosis and advised seeking a surgical consult.  Thanks to a family member in the medical field, an appointment was made for the consultation with a reputable surgeon.  Unfortunately, I wasn’t advised of the consultation, nor was I able to rearrange my schedule to attend the meeting.  However, because my spouse is young and presumably capable of processing and relaying information, I didn’t believe that my presence was necessary.

The day of the surgery arrived and, at check-in, the receptionist mentioned something about “open.”  That was when I began to mildly panic.  A nurse came to take my spouse back to pre-op, and I stood to come back with him. I had questions I wanted to ask, given what I just heard.  The nurse said she would come get me in a few minutes.  More than a few minutes went by and, by the time she came to get me, my spouse was in a hospital gown with a needle in his arm and anesthesia had been administered.  I was terrified and furious all at the same time, since I had absolutely no idea what was happening.  All I knew at that point was the situation was not what I expected.  Of course, neither the surgeon nor the anesthesiologist were around to answer any questions.  A nurse was able to read my spouse’s chart to tell me what type of surgery was scheduled, and it was vastly different than what I had been told, and much different than what I had been expecting.  It was far more serious than what had been relayed to me, and the recovery was very different than simply not lifting objects. 

After the surgical consultation, my spouse reported that the surgeon had availability on December 18th.  He reported that he wouldn’t be able to lift anything for a few weeks and would be sore for a few days, but that was all.  So, while I was aware of an upcoming surgery, my impression was that the impact would be minimal.  At a holiday party the week before the surgery, my spouse told another party goer that his surgery was going to be laparoscopic; even better I thought to myself – very little down time!

At this point, the nurse looked to me to confirm I would be with him for the next 24 hours, as he was not to be left alone due to the anesthesia.  I let the nurse know I was not going to be with him, since I had a full day of appointments the following day, and that no one had informed me he needed to be watched.  The nurse gave me a look that said I must really be out in left field not to be aware of this fact, but I really had no idea. Finally, the surgeon arrived and confirmed he was having the more serious surgery and informed me that my spouse would be unable to walk up and down stairs for days (we live on the second floor) and he would not be able to drive for two to three weeks (I had scheduled him to pick up a few last minute Christmas gifts), and would likely not be able to work at all for a minimum of six weeks.  At this point, my panic turned from mild to major, and I was furious.  It was also too late to do anything about this, since he had already been administered anesthesia.

During my spouse’s operation, my mind flip flopped between calculating what had just been added to my already miles long to-do list (this was just a few days before Christmas and guests were set to arrive shortly), concern over the possible side effects of the operation, anger with my spouse for not informing me of how disabled he was going to be for weeks, and frustration with myself for not following the advice I had been providing to clients for years.

My spouse’s surgery turned out to be fine, although we won’t know if it was successful until sometime in mid-January.  He can walk up and down steps now, but he still can’t drive.  We did make sure our son had a nice Christmas. And, I learned a valuable lesson– I was reminded to take my own advice. In hindsight, I should have made my spouse change the consultation to be at a time when I could have gone with him.  At a minimum, I should have sent my HIPAA waiver to the surgeon and spoken with him prior to the moment of surgery.

Estate planning and planning for medical events are not simply for older adults or people with disabilities; medical procedures happen to young people as well.  Remember, if you find yourself or someone close to you in need of any medical attention, take someone else to the pre-surgery appointment, and make sure all parties understand what the medical procedure will involve  post-surgery.

Ask Kit Kat – City v. Country Frogs

Hook Law Center: Kit Kat, is it true there is a difference between croaking or singing of urban frogs v. country frogs?

Kit Kat: Well, oddly enough, there does appear to be a difference. Scientists first observed the difference in tungara frogs in Panama. In cities in Panama, the tungara male frog took advantage of the lack of predators like bats and snakes, and their mating calls were low-pitched, and had a beeping, more rapid quality to it. Apparently, this is more enticing to female frogs coming from both urban and rural venues. Scientists reported this phenomenon in the journal Nature Ecology & Evolution. When 40 female frogs originating from both types of locales were played both kinds of mating calls in a laboratory, 30 of them hopped over to the speaker playing the urban frogs’ songs.

All is not so easy for the urban male frog however. Although his call is extremely enticing, there are fewer female frogs in the city. So he has to work harder to attract a mate. Who knew the life of a male frog could be so complicated? The urban-rural divide applies not only to humans, but to frogs as well! (Christina Larson, “City frogs are sexier than country cousins,” The Virginian-Pilot, December 12, 2018, p.4)

Posted on Monday, January 7th, 2019. Filed under Senior Law News.
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