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Virginia Estate Planning Cost and Fees

Written by Jon Montagna on April 3, 2023. Posted in Estate Planning.

Whether you are a young adult newly turned eighteen or older, deciding to create an estate plan can benefit both yourself and any current or future heirs. Even if you think you have too few assets, creating a basic estate plan allows you to decide who cares for your medical and financial decisions if you become incapacitated instead of leaving it up to the state. Working with a Virginia estate planning attorney is for everyone, not just those with exorbitant assets. If you are looking to set up your estate plan and require assistance, contact the experienced Virginia estate planning attorneys at Montagna Klein Camden by calling 757-622-8100 or filling out our convenient online contact form.

Why is Estate Planning Important?

Creating an estate plan is important for several reasons. One is to avoid probate, where the courts could hold your assets for years before being distributed based on Virginia intestacy laws. If this happens, your beneficiaries will have to wait for the probate process to complete, which can be both challenging and frustrating for all involved. It can even cause family disputes, strife, and a legal war that can tear your family apart.

Another reason for having an estate plan is to know that your heirs and beneficiaries will receive what you want them to rather than what the state decides to give based on the law. Establishing your wishes for asset distribution can provide you with peace of mind that what you own goes to those you choose.

For married couples or single parents with minor children, an estate plan allows you to put in place protective measures, such as naming a guardian for each underage child or setting up a special needs trust.

Estate planning is also important to help minimize income, estate, and gift taxes. With efficient estate and tax planning, taxes and other costs can be minimized, protecting the value of your assets and the interests of your beneficiaries.

What Will an Estate Plan Cost in Virginia?

The costs involved in the estate planning process can differ for each individual. The first step begins with understanding what your estate includes and other factors directly related to a plan’s preparation.

What Factors Affect the Cost?

The price of an estate plan will depend on several individual factors, including the size, complexity, and location of your estate. The number of documents required to meet your particular needs adequately will also matter.

Size of Estate

In most instances, the size of the estate will be the first clue as to how involved an estate plan will need to be. The smaller the estate, the less time and expense will be needed. The larger the estate, the more time, paperwork, and adherence to legal procedures will be necessary to create a thorough plan.

Complexity of Plan

How complex a plan needs to be can also affect the costs involved. With higher complexity, such as with those estates that include various investments, stocks, bonds, and even businesses or real estate, more resources and time will be necessary to plan for correct distribution.

Location of Estate

When an estate includes assets that cross state or country borders, those locations where assets reside can complicate matters. A more costly plan to protect and efficiently distribute assets might be required in such cases.

Documents Included in Your Plan

Costs will also relate to the number of legal documents you need to include in your estate plan. The more documents you need, the more likely the fee will increase. Your estate planning lawyer can provide legal advice and recommend what document combination will offer you the most protection and ease of distribution upon your death. You may need a last will and testament and power of attorney or require more, such as a revocable trust to provide a higher level of asset protection.

Virginia law offices often have different payment options, including a flat fee for some types of estate planning and an hourly rate for others. We will work closely with you to find the right choice or solution for your needs and budget.

How Long Does Probate Take in Virginia?

While state laws differ, in Virginia, probate can take anywhere between a few months to years for an estate to be settled. For an average estate, you can expect it to take at least six months. Smaller ones may take less time, and larger ones can go on for several years.

Due to the lengthy process times, it is best for everyone involved to avoid probate altogether when possible. Your attorney can help by recommending estate planning methods to keep your estate out of the courts and efficiently handled without undergoing probate.

There are also steps you can take on your own. For example, if you have insurance policies, you can set up beneficiaries to avoid the need to include these in the probate process.

Common Documents to Include in Your Virginia Estate Plan

If you are going to make an estate plan, consider including these four essential estate planning documents.

Power of Attorney

A financial power of attorney is a document that authorizes a designated individual to manage your finances if you should become incapacitated. Within this durable power of attorney, you can give this trusted person full responsibility or specify what types of financial matters or transactions the named person is authorized to handle. Upon your death, this legal document is no longer valid.

Living Trust

A trust is a way to manage and pass your assets to your beneficiaries. It allows you to remove assets from under your name and place them under the trust, where you still manage them. Upon your death, the trustee will distribute the trust assets to your chosen beneficiaries. A revocable living trust is a private estate planning tool and usually will not need to go through probate.

Will

One of the most important documents in an estate plan is your will. Having a living will allows for a clear direction of who receives your assets, so it is not up to Virginia’s intestate laws to decide. Depending upon your situation, you may need a simple will or, if you also have a trust, a pour-over will.

Advance Medical Directive

An advance medical directive is a document that allows you to express what type of medical care you want if unable to make healthcare decisions for yourself. Within the document, you will appoint an individual to follow those directives.

Benefits of Using an Attorney Over DIY Estate Planning

With the increasing ability to find estate planning tools online, you may be wondering what the benefits are to using an attorney instead.

Working with an attorney can provide you with access to their knowledge of the laws and the type of documents you need for your particular estate, as well as peace of mind that you have arranged everything in the best legal way possible for your loved ones and beneficiaries. You can help them avoid an estate tax, the probate process, and more. Start by scheduling a consultation for estate planning services to determine what is best for you.

An Estate Plan is For Everyone, No Matter Your Assets

Wherever you are in your life, making time to prepare an estate plan that meets your needs and wishes can create peace of mind while also helping to avoid challenges and disputes among beneficiaries in the future. An estate plan is for everyone, regardless of assets, and does not have to be a burden.

Contact us today at the Montagna Klein Camden law firm by calling 757-622-8100 or using our online contact form. We proudly serve the Hampton Roads area, including Virginia Beach, Norfolk, Chesapeake, Portsmouth, and Suffolk.

How Many Will Executors Should You Appoint?

Written by Jon Montagna on March 30, 2023. Posted in Estate Planning.

According to a 2018 study by EstateExec, it takes, on average, 16 months and about 570 hours of work for an executor to settle an estate. With so much time and energy required for the position, you may wonder whether it would be possible to appoint multiple people. While naming multiple people as executors of your estate is possible, doing so can create more problems than it solves. Speak with our experienced Hampton Roads trusts and wills attorneys at Montagna Klein Camden to decide who should execute your will.

How Many Executors Can You Have?

One of the most crucial decisions you can make in your estate planning is the selection of a trusted executor of your will. This chosen executor will be responsible for following your expressed wishes and distributing assets.

You can, however, name two or more people to be co-executors of a will (or joint executors), but doing so can create problems in the will’s execution. All co-executors must act unanimously, which can cause delays and conflict if disagreements arise. Such disputes can result in a higher chance of litigation, which can add time and deplete the estate’s assets.

Likewise, if one or more executor lives out of state or is less responsive in handling your affairs, that can significantly impact proceedings. Naming more than one executor also creates confusion among your beneficiaries as to who they need to approach with any questions or concerns about the administration of the estate.

How Should I Pick My Executor or Co-Executors?

Your executor is responsible for handling your affairs after you die, including filing your will with the Virginia probate court under state law, distributing your assets as outlined in your will, managing financial and bank accounts, filing tax returns, and paying off your debts. You want to choose someone you trust to complete the duties of an executor and follow your wishes. An executor can be an adult child, family member, friend, attorney, or other professional, but you must choose wisely.

Look for those who can accept responsibility and will see the process through to the end in the best way possible for your loved ones. This responsibility may include hiring outside help, such as an attorney, to help with probate, effectively communicating with your beneficiaries, and retaining the ability to make difficult decisions if needed.

Co-executors do not have to live nearby or even in the same state, but if they do, it will make the day-to-day responsibilities and probate process more manageable. Also, consider how the named parties are perceived by other beneficiaries, such as sibling rivalry, and try to avoid creating unnecessary drama in the execution of your will if at all possible.

Serving as an estate co-executor can be emotionally draining and challenging, so consider this while making a will and choosing parties that can move beyond that and do what is right by you.

What Are the Pros and Cons of Naming Co-Executors?

While naming co-executors is acceptable, it can lead to a messy administration of your estate and lead to disputes among family members and any other parties that may be beneficiaries. If you, as the testator, still wish to name co-executors, consider the following pros and cons.

Pros

Some of the pros or advantages of having co-executors are:

Splitting up the responsibilities of the position so that no one is overwhelmed
Holding each other accountable to their fiduciary duties
Avoiding the appearance of favoritism among your children
Dividing the tasks according to the knowledge and strengths of each executor, such as acknowledging that one has real estate experience while the other has financial experience or an understanding of business matters

Every situation is unique, so examine your circumstances to determine if naming more than one executor is right for you.

Cons

Some of the cons of naming co-executors are:

The risk of conflict between co-executors that may need to be settled in court
The risk that each co-executor is liable for the actions of their co-executors if they violate their fiduciary duties
The possibility that one of the co-executors is unresponsive and delays proceedings
The risk of family conflict

Weigh these potential disadvantages and consequences against your particular situation before choosing multiple executors. Any of these can delay the administering of your estate and lead to frustration on all sides.

When Does It Make Sense to Have Multiple Executors?

There are some circumstances where having multiple co-executors can be valuable. For example, if you own a business, you might name your business partner or lawyer as co-executor with your spouse. This way, your spouse can focus on the parts of your estate that deal with personal property, assets, and their beneficiaries. The co-executor can handle the more business-oriented decisions.

Another circumstance that may benefit from having more than one executor is if you worry about your spouse’s ability to handle sole responsibility for your will. In such a case, you might want to name a co-executor to offer your spouse assistance in administering the estate, which can also provide you with peace of mind.

Your particular circumstances may involve other relevant reasons for naming multiple executors, and an experienced Virginia estate planning attorney can provide legal advice to help.

What Are the Alternatives to Naming Multiple Executors?

If you are worried about the potential conflict and delay caused by co-executors, a beneficial option is to name an alternate executor.

The primary executor of a will does not need to obtain the alternate executor’s approval. Still, if they are unable or unwilling to fulfill the job’s duties, the alternate executor can succeed them and take on the role. You can name a first alternate and a second alternate if you wish.

Choosing alternates is another way to avoid family disputes. Start by sitting down with all your children and honestly discussing why you are naming one or more as the primary executors of your estate. Ask for their input on who should be named as an alternate executor if something prevents the primary executor from fulfilling the job.

Delegate Responsibly and Rest Assured

Estate planning is important to everyone’s life. By delegating responsibly, you can rest assured that your executor will meet your wishes and desires. For help in planning and designating an executor or co-executors for your last will and testament, let the experienced lawyers with the law firm of Montagna Klein Camden help. Call us today at 757-622-8100 to schedule a consultation or use our online contact form. We provide dedicated legal services throughout the Hampton Roads area, including Virginia Beach, Norfolk, and Chesapeake.

lawyer sitting down and discussing paperwork with a client

Understanding the Types of Trusts in Virginia

Written by Jon Montagna on March 29, 2023. Posted in Estate Planning.

Whether you are just beginning your estate planning journey or seeking to expand your plans to protect your children and other beneficiaries, creating a trust might be your next step. However, there are several different types of trusts, and you should carefully consider your options when designing the correct one to protect your interests and those of your beneficiaries.

The experienced estate planning attorneys at Montagna Klein Camden are here if you need help with your will, trust, or other estate planning concerns. We can help with legal advice and guidance on deciding how to move forward to protect your family members best.

What is a Trust?

A trust is a legal document that protects the assets in your estate. The trust is a legal entity that becomes the legal owner of the property placed into it. You can use it to avoid specific levels of estate taxes and the probate process. Trusts provide additional legal protection for your assets beyond your last will and testament.

Trust assets can be added to while you are living, incapacitated, or even after you have passed. Each trust has three components: the grantor, the trustee, and the beneficiary.

The grantor is the person who creates the trust and sets the terms of the trust. The grantor is also sometimes called the trustor or settlor.

A trustee is a person who has conservatorship of the trust property and possesses a fiduciary responsibility to abide by the terms of the trust document. The trustee observes and carries out the grantor’s desires. Married couples often list each other as co-trustees. In other cases, an inter vivos trust can allow the trustor to appoint a trustee to receive benefits on the trustor’s behalf while they are still alive.

Finally, the beneficiary is the person or persons who the trustor or settlor intends to benefit from the trust assets. Beneficiaries can be minor children, family members, or any loved ones you wish.

For example, a person about to pass away may want to see their minor children protected and avoid some level of federal estate tax and probate court. They can create a trust and place some of their assets into it, appointing their surviving spouse as the trustee to manage the funds on behalf of the children, the beneficiaries, until they turn 18. At this point, the assets in the trust pass entirely to the children.

You can place any assets and real property into a trust, even real estate.

What Is the Difference Between a Revocable Trust and an Irrevocable Trust?

Revocability is a characteristic of a trust. That is to say, a trust can be revocable or irrevocable, depending on the type of trust you decide to set up.

Irrevocable Trust

An irrevocable living trust cannot be canceled or changed after being created unless the beneficiaries sign off on any modifications. Typically, irrevocable trusts are not subject to estate taxes because the trust is a legal entity that serves as the owner of the property placed into it rather than granting ownership of the property to the decedent. This change in ownership grants a degree of tax exemption. These trusts are permanent and last for the life of the trustor and beyond. Virginia state laws are very strict about challenging or amending an irrevocable trust.

Revocable Trust

A revocable trust or revocable living trust allows for changes. You can change the trustee, beneficiaries, property, any instructions for asset distribution, and even the overall existence of the trust itself. With a revocable trust, you must name a successor trustee to take over responsibility if you die or become incapacitated. Because the property in a revocable trust remains under the trustor’s ownership rather than being owned by the trust, it is subject to estate and applicable income tax. Revocable trusts can last however long you wish them to last. You can cancel them at any time. If your revocable trust lasts until you die, it becomes irrevocable under Virginia law.

Benefits of Creating a Trust in Virginia

Creating a trust can benefit both those with large and small estates. Some of the benefits of creating a trust in Virginia include potentially avoiding the probate process, reducing tax obligations, protecting your legacy, and helping your beneficiary loved ones receive the care and property you wish.

Because a trust can allow you to avoid probate, you can pass assets much quicker and easier to surviving loved ones. The tax shelter that a trust can provide can make passing your estate assets more cost-effective for your beneficiaries. Trusts can also set specific requirements for how assets are delivered. The typical distribution is that a particular amount of money or specific goods is provided regularly, such as annually, until the beneficiary reaches a predetermined age or condition. At this point, they get the rest.

Trusts can also provide for specific anticipated needs. For example, you can set up a trust to pay for a minor child’s future college education.

Finally, unlike your last will and testament, which is a matter of public record, a trust can protect your privacy. Trust documents are private, and neither the assets they contain nor their distribution is a matter of public record.

Most Common Types of Trusts You Can Establish

Under Virginia state laws, there are several types of trusts. Each has different purposes, benefits, and goals.

Charitable Trust

A charitable trust, or charitable remainder trust, is established for the benefit of a specific charity. The trustor determines how the trustee will use the assets placed into the trust to support the charity for which it is created. Charitable trusts can also protect your assets from estate or gift taxes.

Special Needs Trust

Special needs trusts, also called supplemental needs trusts, are designed to provide for the needs of someone with physical or mental disabilities while protecting their eligibility for certain federal benefits such as Medicaid and social security. Normally, if a person with a disability receives a large inheritance, it could increase their income such that it may interfere with Medicaid or SSDI eligibility. A trust protects against that because the trust is the legal entity that owns the property. The trust supports the person with the disability.

Asset Protection Trust

Asset protection trusts are also known as spendthrift trusts. These are designed to protect the beneficiary’s assets against future claims or creditors so the assets are not squandered. Such trusts are usually deemed irrevocable for a fixed period determined by the trustor when they create the trust. After the stated period of irrevocability ends, the trust can be terminated, and the remaining assets can be returned or delivered according to the instructions within the trust.

Testamentary Trust

A testamentary trust is set up by a decedent’s last will and testament after their death. These types of trusts can be simpler and more flexible to set up than many other types. You can also change them at any time up until you die. Because the trust only comes into existence after you die, however, it can also be subject to estate taxes.

Retirement Trust

A retirement trust allows you to place retirement accounts into a trust. The trust offers the tax benefits of a standard retirement account and the asset protection benefits of a trust. Retirement trusts can help assist spendthrift beneficiaries in not squandering an inheritance. This type of trust shelters against divorce proceedings, protects against lawsuits, shields assets from bankruptcy, and safeguards disability assistance.

What Kind of Trust is Most Common?

The type of trust we see most often at Montagna Law is the spendthrift trust. This is because many parents are genuinely concerned about children squandering their inheritance quickly on luxuries and unnecessary items instead of using the money to live comfortably for as long as possible. A spendthrift trust allows a degree of asset protection and peace of mind. While supporting the beneficiaries, the trust will do so in a manner that the trustee considers responsible per the trust’s original intent.

Why Use an Attorney for Estate Planning in Virginia?

Estate planning can be complex and filled with some of your most important decisions. Without the proper guidance, it is fraught with pitfalls and errors that can be very costly. Our estate planning attorneys can offer advice, set up trusts to protect your assets, and assist in protecting your legacy. From life insurance to trusts to power of attorney, our Hampton Roads attorneys can help your estate get passed on as you wish.

What Kind of Trust Do You Want to Set up?

As you consider the type of trust you want to set up, our experienced attorneys at Montagna Law are here to help you make the right decisions and distribute your assets properly. If you want more information, legal guidance, or advice on trusts and estate issues, call us today at 757-622-8100 or use our online contact form to speak with a team member.

What is the Difference Between Complex and Simple Wills?

Written by Jon Montagna on March 13, 2023. Posted in Estate Planning.

When you think about passing away, you are more likely to think about the effect it will have on your loved ones rather than the logistics of distributing your estate. It is natural to have concern for the emotions of those you leave behind. Most people do not understand that estate planning can significantly reduce the struggles they will face after a deceased person passes.

By proactively taking steps to complete your estate planning, you (the “testator”) can save your loved ones from coping with pain, stress, and conflict after your passing. If you have a well established, your decedents can avoid lengthy court proceedings while following your last wishes.

The compassionate and caring Virginia estate planning attorneys at Montagna Klein Camden understand how hard it is to think about planning for death. However, we also know how people can ease future pain for their loved ones by writing a last will and testament.

To learn more about how our attorneys can help you to create an estate plan that fits your needs and abides by the criteria set under Virginia law, call Montagna Law today at 757-622-8100.

Who Should Have a Will and Why?

older man and woman sitting down filling out will paperwork

Wills are valuable documents for anyone, even those without a substantial estate to pass on to their heirs. Creating a will is a good idea if a testator has one or more assets.

If you own one or more assets, such as a home, car, bank accounts, life insurance policy, or other personal property, having a will in place can save your family and loved ones the time, money, and stress associated with the probate court.

The legal team at Montagna Law is well-versed in the intricacies of probate law in the Commonwealth of Virginia. We can help oversee your estate planning process so that all legal documents are binding. If a person in Virginia dies without a will, intestacy law determines who gets your assets once you are gone. With a will in place, that choice becomes 100% yours.

What Are the Differences Between a Simple Will and Complex Will in Virginia?

You should create a will to control the distribution of your assets after your death. Sadly, just one-third of people in the U.S. die with a valid will in place, which can be traumatic for the loved ones left behind. If you still need to draft a will, now is the time. In Virginia, you can choose between a simple and complex will.

Simple Wills

Simple wills are basic directives that outline how you want to distribute your assets after your death. A simple will is typically a good option if you are young, have no children from previous marriages, own modest assets, and do not believe anyone would have grounds to challenge your wishes after your passing.

Simple wills cover the distribution of your assets, dictate custody or guardianship of your minor children if both parents have passed, outline who gets your pets, and name the executor of your estate. A simple will can also include any charitable donations or gifts you wish to make upon your death.

Complex Wills

For many people, simple wills are insufficient for their needs, especially for those over 50. Four factors will push your option for a simple will into a complex will.

Size of your estate
Number of assets you own
Number of specific bequests you make
Need for a trust or other complex estate needs in your situation

Complex wills often include details about how you plan to distribute your assets between children from different marriages. They also typically plan for the future care of disabled children through a Special Needs Trust. Your complex will may contain details about who inherits control of your business, your stocks, and any other assets you own.

What Happens if I Die Without a Will?

If you pass away without a will, this is called “intestate” and involves strict laws. In Virginia, this means your property will go to your surviving spouse. However, if you have children from an earlier marriage or relationship that was not with your spouse, without a will, the estate will be divided. Your spouse gets one-third of your estate, and your kids receive two-thirds. If you are not married at your death, your children will inherit your assets.

Your parents, siblings, and other relatives will inherit your estate if you do not have a surviving spouse or kids. The order of distribution follows a priority list according to close relatives. You might want something else. For example, say you have a favorite second cousin or best friend who has helped you overcome your greatest challenges. If you want them to inherit your estate, your will can ensure this happens. Otherwise, your second cousin would be a lower priority than closer relatives, and your best friend is not a blood relative and would not inherit under intestacy law.

It is in your best interests to establish a last will and testament when you are of sound mind to avoid the probate process and prevent the risk of your assets, including real estate, going to people who may not be your first preference for an inheritance from you.

Should I Hire a Virginia Estate Planning Lawyer?

estate planning lawyer sitting down talking to clients

Yes, hiring a Virginia estate planning lawyer is in your and your loved ones’ best interest. It is common for people to wonder about what is involved with drafting a will and have many questions. “Are wills revocable?”, “How many beneficiaries can I have in my Virginia will?”, “Do I need to get a notary when I sign my will?”, “I’ve heard of a testamentary trust, but what is it?” A Virginia estate planning can answer these questions and any more you might have, including concerns about your liabilities or how to deal with estate taxes.

When you work with a Virginia estate planning lawyer, you will benefit from receiving sound legal advice from an experienced professional who understands Virginia state laws. At Montagna Law, our attorneys can help you decide whether you need a simple or complex will. We will explain specific details, such as testamentary trusts or holographic wills, so you understand your options and if any particular approaches to will-writing should apply to you.

Working with a knowledgeable and skilled attorney to create your will helps reassure you that your last wishes are honored. You can even make requests in your will that are out of the norm, such as wishing to be buried in a specific outfit or with a particular possession. Or, if you want to establish a trust for your pet, our attorneys have seen this too. Our legal team will work with you to write a valid will precisely as you want. Furthermore, if you choose to add a codicil to your original will later, your lawyer can certainly assist.

Trust Us to Help Plan for Your Future

If you are looking to solidify the plans for your assets and other wishes, now is the time to write your will. At the Montagna Klein Camden law firm, we will sit down with you and discuss how you want your assets distributed and any requests you want to make. We will also help you determine whether a simple or complex will is your best course of action.

Once you decide on the type of will you need, we will work with you to incorporate any other wishes you want to include in your documents. To learn more about constructing your will or other estate planning concerns, such as establishing a power of attorney, drafting a living will, or creating a living trust, contact Montagna Law today at 757-622-8100 or by filling out our convenient online contact form.

Montagna Law boasts decades of experience proudly serving Hampton Roads, including Virginia Beach, Norfolk, Chesapeake, Portsmouth, and Suffolk.