Preparing a will is very important, no matter the size of your estate. It allows you, while you are still living, to ensure that your property will go to the people you want, in the way you want, and when you want. It permits you to save as much as possible on taxes, court costs and attorneys’ fees. Also it offers you the comfort of knowing that your loved ones can mourn your loss without being burdened by unnecessary red tape and financial confusion.
If your will was properly prepared in another state, it is probably valid in Virginia. However, your family may be required to obtain affidavits from witnesses to the original will and you may have inapplicable or inadequate provisions. It would be wise to have your will reviewed by an attorney.
No. A list of the tangible personal property you wish to give can be incorporated by reference into your will. For example, if you wish to leave your silverware collection to your daughter, you do not need to specifically change your will. You can prepare a separate memorandum referenced in your will that leaves your silverware, or any other tangible personal property, to your daughter. The memorandum must be dated and signed. If you later change your mind, you can destroy or change the memorandum without signing a whole new will.
Most middle class people do not need a revocable living trust. A properly funded revocable living trust may avoid the probate process in Virginia, but other more efficient means are available to avoid probate. Moreover, the probate process in Virginia is not terribly complicated.
No. All assets in a typical revocable living trust are deemed to belong to the trust grantor, which would be you.
Estate taxes can be avoided or reduced with proper planning. This planning can include the use of lifetime gifts, valuation discounts, and irrevocable life insurance trusts. Prior planning is imperative for families with a net worth in excess of $5 million.
No. In Virginia, you can generally leave your assets to anyone you wish. The only person that you cannot disinherit without restrictions is your surviving spouse.
Yes, but the chances of a successful challenge are minimized if the drafting attorney properly prepared the will and documented his or her file.
For many clients, this is the most important estate planning document. It is particularly helpful if you become incapacitated. A properly drafted power of attorney can avoid certain costly legal proceedings and can serve as a tool to protect your assets if you require nursing home care.
A person dies testate if he left a will. A person dies intestate if he does not have a valid will at the time of death. If a person dies intestate, then the laws of the Commonwealth of Virginia, in effect at the time of death, determine who the heirs are and who receives the deceased’s property.
An estate must be probated when the deceased has assets titled solely in his or her name at the time of death. Property jointly held with a surviving owner, property passing to another person who has been designated a beneficiary, property with a “Payable on Death” or “Transfer on Death” designation, or property titled in the name of a trust do not come under the provisions of a will, and are outside of probate. Assets include real property, personal property, bank accounts, stocks and bonds, retirement accounts, life insurance policies and other types of securities.
To the clerk’s office of the circuit court of the jurisdiction:
- where the deceased was last known to reside, if none, then
- where the deceased owned real estate, if none, then
- where the deceased died or had any estate
For persons residing in a nursing home/convalescent home, pursuant to 64.1-76 of the1950 Code of Virginia, as amended, the place of legal residence of such person shall be presumed to be the same as it was before such person became a patient. However, that presumption may be rebutted by competent evidence.
The executor named in the will takes the will and other pertinent estate information (see the following question) to the probate department of the Circuit Court to probate the will and qualify as executor. The named executor should be a Virginia resident; however, statutes do allow out-of-state residents to qualify. When the named executor is not a resident of Virginia, a Virginia resident must accompany the executor to the probate office to either co-qualify or be appointed as a resident agent.
- A Virginia resident must accompany a nonresident prospective executor or administrator.
- The original will (for testate estates).
- A certified copy of the death certificate.
- Approximate dollar value of any solely-held personal assets.
- Approximate fair market value of real estate in Virginia deeded solely to the deceased or the value of the percentage owned by the deceased when the real estate is deeded as tenants in common.
- Names, ages and addresses of heirs at law. These are individuals who are legally entitled to receive an estate when there is no will, pursuant to § 64.1 of the 1950 Code of Virginia, as amended. This list is still required in a testate situation.
- A check to pay fees calculated during the probate appointment, and must include your name, address, phone number and your social security number, and the Virginia Bar number if you are an Attorney. Fees are based upon the estate value.
A will which has an affidavit attached that contains specific language required by law. The presence of this clause eliminates the need to obtain witness depositions. (Section 64.1-87.1 and 64.1-87.2 of the Code of Virginia, as amended).
Holographic wills (those fully in the deceased’s handwriting) may be admitted to probate if they show testamentary intent, and the entire will is written in the handwriting of the testator. In addition, they must be signed by the testator and include depositions of two disinterested parties who can identify the deceased’s handwriting.
Currently the fees are as follows:
- The state probate tax is 10 cents per $100 of the estate value at the time of death.
- The local probate tax is 3.33 cents (one third of 10 cents) per $100 of the estate value at the time of death.
- The recording fee is $13 for the first four pages of the will, $13 for the List of Heirs, and $1 for each additional page.
- The qualification fee is based on the value of the estate.
- The transfer fee will be charged for any real estate taxed in the name of the deceased.
- Final federal and state income tax, personal property tax, and estate tax returns must be filed for the deceased and the estate as applicable. Generally, federal and state estate taxes are only due if the gross estate (including life insurance and all property) exceeds $1,000,000 in 2002. For more information on taxes, contact the Internal Revenue Service and the Virginia Department of Taxation.
- Giving notice to interested parties and filing an affidavit of notice.
- Filing income, inheritance, or estate taxes with the federal or state government.
- Filing an inventory no later than four months after the qualification date and filing a settlement of account or statement in lieu of accounts no later than 16 months after the qualification date with the Commissioner of Accounts Office (not the circuit court clerks office), until the estate is closed.
- Notifying the Commissioner of Accounts of any change of the Fiduciary’s address.
- Paying all Probate Taxes due to the Clerk of the Circuit Court.
- Payment of debts in the order set forth by law.
- Disbursing any remaining assets according to the will or to the heirs at law.
A fiduciary must file an inventory within four months from the qualification date. A first accounting or statement in lieu of the first accounting must be filed within sixteen months from the qualification date. Fiduciaries file these documents with the Commissioner of Accounts office. The fiduciary will get a packet at the time of qualification containing instructions and other necessary forms to be completed to properly administer the estate. Finalization of an estate varies in time depending upon various circumstances.
The law provides for fiduciaries to be compensated for the time and energy involved in administering a will. The Commissioner of Accounts must approve the compensation, which is generally limited to five percent of the assets handled.
- All of the assets go to the surviving spouse, unless there are children (or their descendants) from another marriage in which case, one-third goes to the surviving spouse and the remaining two-thirds is divided among all children.
- If there is no surviving spouse, the assets go to the children and their descendants.
- If there are no children, then the assets go to the deceased’s father and mother or the survivor.
- If there is no father or mother, then the assets go to the deceased’s brothers and sisters and their descendants.
- There are further contingent beneficiaries set out in the Virginia statutes. (Virginia Code Annotated §64.1-1)
There is a Virginia statute that authorizes banks to allow a spouse, next of kin, or other person having an interest in locating a will access to a deceased person’s safe-deposit box. This statute is not mandatory. As a result, many banks are reluctant to allow access due to fiduciary and privacy concerns (Section 6.1-332.1 of the Code of Virginia, as amended).
The appointment of a guardian or conservator is a remedy of last resort; other alternatives should be considered before seeking this remedy. Hook Law Center can help you determine if there are any other alternatives and whether a guardianship or conservatorship is truly necessary.
A guardianship is a protective arrangement established by a court in which an individual is declared mentally incapacitated and a guardian is appointed to manage their personal affairs, including responsibility for making decisions regarding the person’s support, care, health, safety, rehabilitation, education, therapeutic treatment and residence.
A conservatorship is a protective arrangement established by a court in which an individual is declared mentally incapacitated, and a conservator is appointed to manage the estate and financial affairs of an incapacitated person.
The individual seeking to be guardian or conservator must acquire certification from a physician which states that the individual who is proposed to be incapacitated is unfit and unable to govern him or herself and manage personal, medical and financial affairs. A Petition is filed with the court which lists all related parties and describes the income and assets of the proposed incapacitated. Prior to the court hearing, the proposed incapacitated and immediate family must be served notice, and an attorney will be appointed to represent the proposed incapacitated’s interests. A hearing is then held to determine if a guardianship or conservatorship are necessary. If there is no contest, a guardianship and conservatorship will be established on the hearing date.
In general, a guardian can handle the daily affairs of the incapacitated, including making routine medical decisions and handling payment of bills. However, courts frequently require the permission of the probate judge in order to sell an incapacitated’s residence or to make gifts from the incapacitated’s assets, unless the guardian has specifically been granted the authority to do so.
No. The conservator is not liable for the acts or debts of the incapacitated solely by becoming a conservator. However, the conservator can become responsible and liable if he or she grossly mismanages or steals the incapacitated’s assets.
A guardian and conservator may receive compensation for the services that he or she renders. The compensation is typically based on the amount of assets owned by the incapacitated and is calculated on an annual basis. In addition, the guardian is entitled to reimbursement for reasonable expenses incurred in the discharge of his or her duties.
A guardian is required to file a report with the Department of Social Services within six months of qualification and annually thereafter. In this report you will provide information regarding the current mental, physical and social condition of the incapacitated, the living arrangements of the incapacitated and any recommendations as to the need for continued guardianship. Hook Law Center is also available to assist with the administration of the guardianship following qualification.
A Community Spouse is entitled to a monthly income of $1,821.25. To the extent that the spouse’s monthly income is less than this amount, a supplement can be obtained from the Institutionalized Spouse’s income.
There are several mechanisms available within Medicaid regulations that make it possible to save a home. It is best to seek the advice of an experienced Elder Law attorney regarding the best plan for your particular situation.
Upon the death of a Medicaid recipient, the State government can make a claim against the deceased for services paid for by Medicaid during their lifetime. The State can only recover from the assets owned by the deceased at the time of death.
A transfer of assets generally results in a penalty waiting period for Medicaid eligibility. The penalty is a period of months that is calculated by taking the average nursing home cost for a particular region (determined by the Department of Social Services) and dividing that number into the amount transferred. There are some transfer strategies available which comply with the Medicaid regulations and utilize the Medicaid lookback period. It is best to seek the advice of an experienced Elder Law attorney regarding the transfer strategy that will work best in your particular situation. Please keep in mind that with the enactment of the Deficit Reduction Act of 2005, even small gifts made without regard to long-term care planning can cause significant penalties and hardship.
Yes, a child who provides a home and/or care to a parent is entitled to be compensated by the parent for such care. The parent’s doctor must provide a written statement that the care is necessary. The type of care provided to the parent and the payment received by the child should be explained in a written agreement signed by the parent and the child. The child must keep detailed records of the services provided and the compensation received.
For a single individual, a Medicaid application can be filed when you have entered a nursing home, your countable resources have been reduced to below $2,000 and after all periods of ineligibility have expired. For a married couple, a Medicaid application can be filed when the institutionalized spouse’s countable resources have been reduced to below $2,000 and the Community spouse’s assets have been reduced to the appropriate CSRA limit.
Countable resources are most assets that can be converted to cash and used to pay for your support or healthcare. They are considered in determining your Medicaid eligibility. Medicaid rules permit some resources to be excluded that would otherwise be counted for purposes of determining Medicaid eligibility. An example of a non-countable resource is an individual’s term life insurance.
Generally, if the face value of all your whole life insurance policies exceeds $1,500, the cash value of those policies are treated as countable assets for purposes of determining Medicaid eligibility. For a married couple, the Community spouse may retain their whole life insurance policies with face values in excess of $1,500 as part of their CSRA.
Under Medicaid eligibility rules regarding jointly-owned Certificates of Deposit and bank accounts, the Department of Social Services assumes that all of the funds in the account belong to the Medicaid applicant. Investment accounts and other accounts titled as joint tenants are treated as each person owning an equal share of the total assets in the account.
Through the creation of certain irrevocable Supplemental Needs Trusts, you can protect your Medicaid benefits in the event you are the recipient of an inheritance, personal injury claim or divorce award. It is best to seek the advice of an experienced Elder Law attorney regarding the right plan for your particular situation.
There are five ways to pay for long-term care
- Private Pay
- Long-term Care Insurance
- Veterans Administration
The firm has been practicing many of the aspects of care management for over 20 years. Through evolution and necessity, Hook Law Center has helped many of its elder clients by paying bills, getting in home care, selling property and being a liaison with families.
Yes, our care manager is on call to meet the needs of our elderly clients and their families during evening hours and weekends.
Hook Law Center communicates with clients by telephone, written correspondence, fax and email.
Yes, Hook Law Center has home-care service resources for the local areas.
Upon engagement of services, Hook Law Center will provide a written statement of fees and the services to be performed.
VA Disability Pensions are benefits paid to wartime veterans who have limited or no income in excess of their healthcare expenses, and who are 65 or older, or, if under 65, who are permanently and totally disabled due to non-service connected conditions. VA Disability Pensions are unlike traditional pensions which are based on years of employment or service with a company or organization. Veterans who are more seriously disabled may qualify for increased benefits based on Aid and Attendance or being Housebound. Widows/Widowers and dependent children may also qualify for Death Pension benefits. Death Pensions are needs based benefits paid to an un-remarried surviving spouse, or an un-married child of a deceased wartime veteran.
Generally, you may be eligible if:
- You were discharged from service under conditions other than dishonorable, AND
- You served at least 90 days of active military service at least 1 day of which was during a wartime period.
- Your countable family income is below a yearly limit set by law (The yearly limit on income is set by Congress.), AND
- You are age 65 or older, OR, you are permanently and totally disabled, not due to your own willful misconduct.
If you entered active duty after September 7, 1980, generally you must have served at least 24 months or the full period for which you were called or ordered to active duty (There are exceptions to this rule.), AND
Countable Income includes income received by the veteran and his or her dependents, if any, from most sources. It includes earnings, disability and retirement payments, interest and dividends, and net income from farming or business.
Net Worth means the net value of the assets of the veteran and his or her dependents. It includes such assets as bank accounts, stocks, bonds, mutual funds and any property other than the veteran’s residence and a reasonable lot area. There is no set limit on how much net worth a veteran and his dependents can have, but net worth cannot be excessive. The decision as to whether a claimant’s net worth is excessive depends on the facts of each individual case. All net worth should be reported, and the VA will determine if a claimant’s assets are sufficiently large that the claimant could live off these assets for a reasonable period of time. VA’s needs-based programs are not intended to protect substantial assets or build up an estate for the benefit of heirs.
Your annual pension is calculated by first totaling all your countable income. Then any deductions are subtracted from that total. The remaining countable income is deducted from the appropriate annual pension limit which is determined by the number of your dependents, if any, and whether or not you are entitled to Housebound or Aid and Attendance benefits. This amount is then divided by 12 and rounded down to the nearest dollar. This gives you the amount of your monthly payment.
Aid and Attendance (A&A) and Housebound benefits are additional amounts paid on top of a monthly pension for those who qualify. You must be eligible for a pension to receive Aid and Attendance (A&A) and Housebound benefits. A&A benefits are provided when the claimant requires the aid of another person in order to perform personal functions necessary in everyday living, such as bathing, feeding, dressing, attending to the wants of nature, adjusting prosthetic devices, or protecting himself/herself from the hazards of his/her daily living environment. Such benefits may also apply when the claimant is bedridden, a patient in a nursing home due to mental or physical incapacity or blind. Housebound benefits are provided when the claimant is permanently and substantially confined to his/her immediate premises due to a medical disability.
Hook Law Center can review individual qualifications and provide advice and assistance in obtaining valuable VA benefits. Documents you will need to provide include: your discharge papers, copies of marriage certificates, copies of medical records and a detailed list of all recurring medical expenses. A copy of the veteran’s death certificate will be needed when a surviving spouse is applying for benefits.
Financial planning is the long-term process of wisely managing your finances so you can achieve your goals and dreams, while at the same time negotiating the financial barriers that arise in every stage of life. Remember, financial planning is a process, not a product.
Financial planning can help you:
- Set realistic financial and personal goals.
- Assess your current financial health by examining your assets, liabilities, income, insurance, taxes, investments and estate plan.
- Develop a realistic, comprehensive plan to meet your financial goals by addressing financial weaknesses and building on financial strengths.
- Put your plan into action and monitor its progress.
- Stay on track to meet changing goals, personal circumstances, stages of your life, products, markets and tax laws.
As an Hook Law Center Financial Services client, you are entitled to complimentary meetings with us to review and discuss your investment and insurance portfolio and to address any changes that may affect your financial and estate plan. It is important to periodically review your financial and estate plan in order to maintain an integrated plan.
You may not have the expertise, the time or the desire to actively plan and manage certain financial aspects of your life. You may want help getting started. You may benefit from an objective, third-party perspective on what are often emotional, difficult decisions. And in today’s hectic world, it can be beneficial to have a financial planning expert help to make sure you stay focused and follow through with your financial plans.
No! Be wary of people who call themselves financial planners who appear more interested in selling you specific financial products at the expense of your real needs and goals. A genuine financial planner can help you address a variety of financial needs, not just investments, insurance or taxes. Moreover, not every financial planner is a CERTIFIED FINANCIAL PLANNER. CFP professionals have an ethical obligation to act in your interest.
It is our job to help you navigate the complex issues and questions you may have about your long term needs, your estate, benefits, and care. At Hook Law Center, we place special emphasis on providing clear, accurate, and timely counsel. We want you to be informed about our fees and costs and are happy to provide you with a written explanation of our services and anticipated costs before we begin any work on your behalf. Please contact uswith any questions you may have about our services or costs.
For the majority of our cases we charge a fixed fee for legal services. This fee is set at the initial meeting based upon: the facts disclosed at the initial meeting; the difficulty of the issues involved, and; our estimate of the time that will be required to provide the requested services. For example, we will commonly use fixed fees for estate planning, Medicaid asset protection planning and uncontested guardianships.
Percentage fees are commonly used when we serve as a fiduciary such as an executor, trustee, or guardian. When we use a percentage fee for serving as a fiduciary we will provide you with a copy of the court approved fee schedule. The percentage is based on the amount of funds and/or assets we are managing. Percentage fees are typically billed on a quarterly basis.
Hourly billing is used when we cannot determine in advance the extent of the necessary services that may be required. For example, we typically use hourly billing for the negotiation of premarital agreements or contested guardianships. Our hourly billing fee is determined by multiplying the hourly billing rate of the professional providing the service and the time he or she spends on the matter. Different hourly billing rates are charged for partners, associate attorneys, and paralegals. At the beginning of our work we will provide you with our hourly billing rates and an estimate of the total fee. When hourly billing is used, we will charge a retainer fee (frequently one half of the estimated total fee) at the time we begin the case. We will then bill against the retainer fee. When the retainer fee is reduced to zero, we will ask that you deposit a new retainer. If it becomes apparent that our fee may exceed our estimate, we will discuss this fact with you and obtain instructions as to how you wish to proceed.