A Last Will and Testament (“Will”) generally “speaks at death” for the distribution of what an individual owns at the time of death. It is a signed, written document in which an adult directs distribution of his or her property to designated beneficiaries. Typically, a Will directs the distribution of tangible personal property (such as jewelry, antiques, household furnishings, and collectibles), cash, stocks, bonds, certificates of deposit, automobiles, as well as real property. It can also direct the distribution of retirement funds, benefits under life insurance policies, and annuities. A Will also serves as the legal document by which parents of minor children may designate a guardian and custodian of their children who have not reached the age of 18 at the time of the parents’ deaths.
A Will is the appropriate document to contain the individual’s intentions regarding burial, funeral and cremation. Directives may be included regarding burial in a family plot, disposition of cremains in a certain manner, and the type of religious or non-religious service one desires.
If an individual dies without a Will or other appropriate estate plan in place, the individual is deemed to have died “intestate.” As a result of dying intestate, the decedent’s properties will be distributed pursuant to statutes enacted by the Commonwealth of Virginia. Those statutes set forth to whom the deceased individual’s assets will be distributed, when they will be distributed, and how they will be distributed. Dying intestate results in the Commonwealth of Virginia determining who will serve as personal representative of the estate and custodian of any funds distributable to minor or incapacitated individuals. This can be especially significant in the case of legally separated but not yet legally divorced individuals, individuals in a second marriage (with or without children from a prior marriage), and divorced individuals with minor children.
In sum, a Will is an essential document to have in place regardless of the size of an individual’s estate. With a Will in place, the individual controls the distribution of his or her assets, to whom they will be paid, and on what conditions. Dying without a Will results in the Commonwealth of Virginia (and not the individual) controlling the administration of properties and appointing a personal representative to handle the estate. The failure to have a Will in place can create unintended consequences and tensions that leave families with the wrong kind of memories. Please contact our Virginia Beach Trust and Estate lawyers at Poole Brooke Plumlee PC, who are experienced in drafting wills and trusts that range from simple to complex.