“Decide in advance how you are going to act before you get into a situation.” Wisdom applicable in business, interpersonal matters, situations involving ethics, and planning for the seasons of life.
What if one does not know enough about the intricacies of events that may occur in order to plan, or does not want to face the realities of promised or known occurrences?
Addressing known occurrences can often be intentionally rotated on one’s to-do list to the very bottom of priorities. Discussion of or the planning for the event that is often taking the tenth position on that one-to-ten list may not be mowing the grass, emptying the dishwasher, or cleaning the house, nor may it even be the next echelon of priorities – deciding on a job change, investing one’s money wisely, or making a move.
That known occurrence that so often seems to hold the priority spot of number ten is the planning for the occurrence of death. Other actions take precedence for a multitude of reasons.
As an estate planning attorney, I frequently hear the following comments related to planning for the occurrence of death. “I don’t want to do any estate planning – like write a last will and testament, because that makes death too much of a reality.” “If I write my last will and testament then there is nothing standing between me and death.” “A last will and testament is meant for adults, and I don’t feel like ‘adulting’ today.”
The Bible tells us that, “There is a time for everything, and a season for every activity under the heavens: a time to be born and a time to die.” Ecclesiastes 3: 1-2 (NIV) We know this to be true.
In 1 Corinthians 15: 51 and 54 (NIV) we are told of “a mystery: We will not all sleep, but we will all be changed — in a flash, in the twinkling of an eye, at the last trumpet. For the trumpet will sound, the dead will be raised imperishable, and we will be changed . . . then the saying that is written will come true: “Death has been swallowed up in victory.”
From such framework, a conversation surrounding the planning for death tends to shift the focus from an event that seems to loom to perhaps one that when glancing beyond the human frailties is truly the revelation of a great mystery.
When a new client reaches out inquiring about “the process,” they will often share, “I don’t even know where to start or what estate planning entails.” In the event one is able to reframe the occurrence of death and wants to undertake proactive planning, knowing the intricacies of planning for the event may further put a person at ease.
The estate planning process often begins with a consultation between an attorney and a client. In general, that time is used by the attorney to educate the client on what estate planning documents are available within the Commonwealth of Virginia, review what assets are part of the client’s estate, and discuss the intents of the client.
In the event a decision is made that a last will and testament needs to be drafted, the following – though not comprehensive, are a number of questions that the testator, the person for whom the last will and testament is being drafted, may be encouraged to consider.
Who are your immediate family members living at the time of the execution of your last will and testament? For example, the name of your spouse, and your children and their respective birthdates are important. In addition, consider whether you have stepchildren you want treated as if they are blood of your blood.
Do you have a pre-nuptial or post-nuptial agreement in place? In the event you have in place a signed agreement with your spouse in which your spouse waives, releases, and relinquishes any and all right, title and interest to your real and personal property, including but not limited to, rights of election to take against the other’s will or trust, or an elective share of the deceased spouse’s or combined augmented estate, you may want to reference the existence of said document.
Do you want to leave specific bequests? There may be an heirloom piece of jewelry that you want leave to your granddaughter. Perhaps, there is a charity that you admire for its contributions to the community to which you want to leave a monetary gift. You may even want to devise your real property to an individual who would appreciate and treasure the family residence as much as you do.
Who do you want to be the beneficiaries of your estate that passes through your last will and testament? Do you want your spouse to take all of your assets upon your death? If your spouse fails to survive you, would you want your children to take your assets upon your death? If so, do you want them to take in equal shares or in disproportionate percentages? Though challenging to consider - What if a child fails to survive you, would you want his or her descendants to take his or her interest?
What if none of your named beneficiaries survive you? Do you want your heirs, those who would have taken had you died intestate - without a last will and testament in place, to take? Or, would you prefer to name charities to take under the Takers in Default clause?
Do you own interests in a business? In the event you own interests in a business consider making sure that you understand what and how those interests may pass upon your death.
Who would you like to name as your Executor? Is there an individual who you think has the capacity to take on the fiduciary role of Executor of your last will and testament? What if that person is unable or unwilling to serve as Executor? Who would you name as a successor?
Do you have minor children? For those who have children under the age of eighteen - upon your death, who would you trust to be the guardian of your minor children? What if that individual is unable or unwilling to act as guardian, who would you trust as a successor guardian of your minor children? Is that guardian also someone who would be suitable to be the trustee of the trusts established for the minor children? Do you need to identify a different individual to manage the assets of the minor children for their benefit?
Is it possible that when you die, a beneficiary under your last will and testament may be a recipient of benefits that are means-tested? Discussing the ramifications of such a beneficiary inheriting assets, and whether the establishment of a special needs trust would be prudent, whether inter vivos or through your last will and testament, is imperative.
Do you have pets that need special consideration? Identifying who would take care of your furry loves upon your death can be addressed in your last will and testament. In addition, the Code of Virginia allows for the establishment of a pet trust through a last will and testament, enabling you to set aside and direct resources for the care of those pets who are such an important part of your life.
Is there any instance in which you want to control your assets from the grave? For example, a child is not able to manage his or her finances, or a named beneficiary is in an unstable marriage. Including trust language in your last will and testament (establishing a testamentary trust) to address such concerns, though perhaps not as ideal as inclusion in a revocable trust, may be a consideration.
There are so many actions in life that seem to take a great deal of courage; coming to terms with your mortality may be one of them. Perhaps acknowledging the known occurrence of death and being a little more aware of the intricacies involved in the writing of a last will and testament, affecting your estate planning can now move to a top spot on your list of priorities.