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Wills and Probate


If you are reading this article, either you or a loved one is trying to prepare for the future. The process of drafting a will is not complex, rather it is a formula that most attorneys can follow. Drafting a will is simply putting down your wishes and directions  on paper similar to drafting a contract. However, probating a Will is complicated and can lead to many disputes. If you need to probate or contest a will in Virginia please find a lawyer who can help you with wills and probate.

Drafting a Will

At the end of the day, a Will is a document that helps you prevent infighting about your assets after your death. It also helps make sure that the right people are getting your assets. When drafting a will you must be careful to keep things simple. If you are considering leaving behind a Will, you should consider not only who you would like to leave your assets to, but also how you would like to leave your assets. For instance, if you have two children and one is studying to become a doctor and the other is a l lawyer, you might want to give your house to your son who is trying to become a doctor for the purposes of drafting a will. But what if your son becomes the best Doctor in the world and makes way more than your moderately successful lawyer son? Well in that case you can say in your Will that you want the house to go to your doctor son, unless he is making more money than your lawyer son.  May be your lawyer son can help in drafting a will It is always a good idea to make a simple list of items and directions when drafting a will. That way, your intent to help your sons is in tact even if you aren’t there to decide in the moment. The processes of wills and probate can be complicated.

Further, you should think about who you trust to administer your Will should you die. Do you want your wife to decide how to distribute your assets? Or do you want your Dad to decide? This decision is necessary to make at the time of drafting a will and could prevent fighting later. That is why before commencing you should know the basics of wills and probate before drafting a will. For instance, you would think a close relative would be the most trustworthy person however, self-interested parties may not have the rest of the families interests in mind when drafting a will. In the case of probating a will, a stranger may be the more objective person to decide how to decide your assets. You don’t to start from scratch when drafting a will you can find many samples to get started with drafting a will. We aren’t suggesting a complete stranger, but someone not interested in how the assets are divided.

Probating a Will

The most difficult part of anyone’s death is having to go into court soon after the funeral. Almost no one wants to do it. However, this is an important first step that must be made so that assets are transferred legally so you must be careful when drafting a will to being with for probating a will. The representative named in the will must become qualified by the clerk to access bank accounts, transfer property, claim on a life insurance policy, collect employment checks, and notify the Social Security Administration. Only the qualified personal representative can act on behalf of the deceased in full capacity. It is not uncommon when dealing with wills and probate to be overwhelmed with the process.

The first think you will be required by the court to do is to start making a list of all the assets in the deceased property. You have four months to do so, so take a month or two to grieve first, and then get started. Included in this list should be all of the debts and creditors you are aware of including the IRS, State Tax, and city tax offices. This will be important for the next step.

It is often thought that once you die, your debts disappear. This is not the case. Before you are allowed to distribute any assets, your debts must be satisfied. Sure, Virginia has a homestead exception which will protect some of those assets from creditors, but not all. The complicated part here is that you have to pay creditors in a certain order as well governed by Virginia law. To do this correctly, it is highly recommending that you have a lawyer at least review the list and advise you. If you are not sure how to proceed you may be a victim of ignorance of the law when it comes to wills and probate.

Finally, you may disperse assets consistent with the wishes of the deceased. Follow the instructions of the Will carefully and keep in mind, you are not free to give away any assets that do not appear in the will. Rather, State law dictates where these assets must go. Contact us for more information.

Link to Virginia Code Title 64.2. Wills, Trusts, and Fiduciaries