Frequently Asked Questions

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).

• 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)

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.

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.

• 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.

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.

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.

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).

• 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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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.

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.

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.

There are five ways to pay for long-term care

• Private Pay
• Long-term Care Insurance
• Medicare
• Veterans Administration
• Medicaid

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

Upon engagement of services, Hook Law Center will provide a written statement of fees and the services to be performed.

Yes, Hook Law Center has home-care service resources for the local areas.

Hook Law Center communicates with clients by telephone, written correspondence, fax and email.

Yes, our care manager is on call to meet the needs of our elderly clients and their families during evening hours and weekends.

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.

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.

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.

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.

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.

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.

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.
• 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
• 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.

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.

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.

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.

As a 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.

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.

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.

Our goal is to exceed client expectations. However, if at any time you become dissatisfied with our fees or the services we provide, please contact the attorney who is managing your matter. If you remain dissatisfied, please contact Mr. Hook.

Anyone can buy documents on the Internet; however, documents are tools and not a plan. Good tools cannot build a fine piece of furniture that requires the skills of a cabinet maker. At Hook Law Center, our attorneys and financial planners are highly skilled and experienced in the practice of elder law. Annually we update our skills with continuing education so that we stay abreast of the latest developments in both Federal and State laws.

When you hire Hook Law Center, we assist you in reviewing your circumstances and objectives and developing a custom estate and a financial plan that reflects you specific circumstances and will accomplish your objectives, not a generic solution. Then we put the plan into effect together with the appropriate decisions and documents. Your plan, developed and completed with our assistance, will pay for itself by reducing your administrative expenses, taxes and stress.

In our opinion, failing to create an estate and financial plan with professional assistance is planning to fail.

We recommend that you regularly review your plan. Changes in your circumstances or in the law can make your plan ineffective to accomplish your objectives or carry out your wishes.

If you elect to become a member of our Preferred Client Program, for a fixed fee of $750 per year, you may call us with questions about your plan without charge and we will annually meet with you to review your estate plan and make minor revisions as necessary to the plan. If significant revisions are required, as a member we will discount our fee by 10%.

If you are interested in the Preferred Client Program, please call us for a DVD and brochure which explains the program in greater detail.

As an alternative, we recommend that you retain us at least every 3 years to review your plan and make necessary revisions. In this case, we will charge you for this service based on our hourly rate.

On occasion, a family member or other third party will offer to pay your legal fee. We will accept payment from a family member or third party only with your consent and the understanding that you are the client; we will protect your confidences and will accept instructions only from you, regardless of who pays our bill.

We accept payment by check, cash or credit card. Checks should be made payable to “Hook Law Center, P.C.” We accept most credit cards including VISA, Master Card, and American Express. Upon request we will provide you with a written receipt for your payment and an itemization of the portion of our fee that is tax deductible.

For fixed fees we will bill one half of our fee when we begin the matter and the remaining half when the services are delivered. For percentage fees, we bill on a periodic basis (typically on a quarterly schedule). For hourly billing matters, we bill on a periodic basis (typically on a monthly schedule).

Invoices will be itemized to include the dates of delivery of services, a description of the services delivered, the time required for each service, the staff member who delivered the service and the billing rate for each service.

Yes, at the beginning of each case we will provide you with a written engagement letter that will define the scope of the services that we will deliver and the fee we will charge you.

Yes, we have and will meet with a client in his or her home, another professional’s office, a hospital, a nursing home, or an assisted living facility.

However due to the additional time required, we have to charge an additional fee for out of office meetings in the Hampton Roads, Virginia area.

Yes, we will bill you for costs and expenses paid to third parties. For example, we will bill you for fees to record documents, court filing fees, premiums for surety bonds, overnight delivery costs, fees for third party experts and costs of travel outside of the Hampton Roads, Virginia area.

You will be provided with an estimate of these costs and expenses when you engage us. We will not bill you for normal overhead expenses such as photo copies or long distance telephone calls.

We determine fixed fees based on the following factors; 1) information provided by the client at the initial meeting, 2) the client’s time requirements, 3) the scope of the services required, 4) the difficulty of the issues involved, and 5) our estimate of the time that will be required to provide the necessary services.

For example, we will set a higher fixed fee for an estate plan that must be delivered within a week or for an estate plan that provides for gifts to beneficiaries in trust rather than distributed outright. Generally we can provide a lower fixed fee when clients provide us with complete and organized information and seek our assistance early, so that we can avoid expedited services. When new facts are developed after a case begins or when the scope of requested services changes, we reserve the right to change the fixed fee.

Our fees are normally one of three types: 1) Fixed fee, 2) Percentage Fee, or 3) Hourly Billing.

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.