My clients often ask me if they need a will. Yes, you do! A will allows for control over the disposition of your assets, including your home, when you die.
If you don't have a will, the Commonwealth of Virginia will create one for you in the form of its intestate succession statute, which directs who receives your property when you die without a will.
Often the application of the state statute will not produce the desired results.
Another question that people frequently ask is, "What happens to my home if I don't have a will?"
This depends on the manner in which your home is titled when you die. Certain types of ownership will allow the property owner to control who receives the property upon death, while other tenancies have a survivorship feature, which will cause title to the property to pass by operation of law.
For that reason, it is important that you familiarize yourself with the manner in which you hold title to all real estate you own.
With the number of online and do-it-yourself legal providers continuing to grow, some individuals may be wondering if they could do their will preparation or estate planning themselves. The advertising is seductive, the cost is significantly less than hiring an attorney, and many of these website kits are created by attorneys.
Remember, however, that this is your estate plan. I recommend you consult with a local attorney. Virginia Beach Estate planning attorney Scott Alperin says that most people think their estates are not complicated, and many think they are just as knowledgeable as legal professionals.
This line thinking is akin to performing surgery on yourself. Would you do it?
Most professionals know that DIY estate planning can be very dangerous. While completing the forms may seem easy and straightforward, a mistake can have far-reaching complications that only come to light after the person has died.
With that person not here to explain his or her intentions, the heirs could end up disappointed and confused. They could also end up paying much more in legal fees than it would have cost to plan properly in the first place.
For those who ignore the importance of estate planning, consider my story. My father died last year without a will. If we had applied the law to my situation, me and my brothers would have been left out entirely. Fortunately, because we are a close family, everything worked in everyone's favor.
Consider the following about leaving your estate to chance or doing it yourself:
* Legal expertise - Experienced estate-planning attorneys have the technical expertise to draft documents correctly.
Yes, they may use pre-drafted forms, but they know what to change it to make your plan work the way you want. They also understand the technical terms and legal requirements in your state.
A do-it-yourself program or kit may not tell you everything you need to know to prevent your plan from being thrown out by the court.
* Counseling - Attorneys are called "counselors at law" for a reason. Most estate planning attorneys have counseled families. They've seen the results of proper and improper planning.
An experienced attorney can guide you with delicate decisions, including who should be the guardian of your minor children; how to provide for a child or elderly parent who has special needs without interrupting valuable government benefits; and how to provide for your children fairly.
You can also protect an inheritance from creditors and irresponsible spending.
* Explanation of intentions - If there is any confusion as to what your intentions were after you die, the attorney who counseled is able to explain them.
This unbiased interpretation from someone who does not stand to benefit from your plan can help to avoid costly litigation by your beneficiaries and even maintain the validity of your documents.
* Coordination of assets - A will controls assets that are titled in your name. You probably have other assets that are controlled by a contract, joint ownership and/or beneficiary designations, including IRAs, 401(k)s, joint bank accounts, real estate and life insurance.
* Tax planning - The federal estate-tax exemption has been a moving target in recent years. The current $5 million exemption is set to expire at the end of 2012.
If Congress does nothing, it will reduce to $1 million in 2013. Many states have their own death or inheritance tax, often at much lower exemptions than the federal tax. Careful planning is a must to avoid paying too much federal and/or state tax.
* Same-sex and other relationships - Because laws are frequently changing and vary greatly from state to state, it is vital to have updated advice from a competent professional. Without proper planning, many rights may be limited for unmarried cohabitants.
* Complexity and cost - Most think their estate planning will be simple. The reality is, most of us discover that we do need some personalized planning.
In those cases, you need the guidance and counseling of an experienced attorney because you won't be around to straighten things out if you die or become incapacitated.
Alperin's advice is for people to become educated consumers. The more we learn and understand about estate planning, the less time an attorney will need to spend educating us as to the process.
Start by preparing a list of assets and liabilities. Gather relevant documents (deeds, titles, beneficiary designations, etc.), and consider beneficiaries and any special needs they may have.
I can tell you after talking with Scott, I checked the beneficiary on my 401k. Guess what? I had not designated one. That would have been a huge mistake!
Ask friends and acquaintances for referrals. If costs are a concern, let the attorney know up front that you are concerned about costs; he/she may be willing to work with you to keep them as low as possible.
Consider what you think you want, but be open to the attorney's suggestions. In the end, Dad would have been proud to know everything worked well. But you shouldn't count on good family relations or good luck in planning your estate.
Steve Rockefeller is a 22-year mortgage veteran. He's a past president of the Tidewater Mortgage Bankers Association and Virginia Mortgage Bankers Association. Reach him at (757) 301-9776 or email@example.com. This column is relative to the mortgage industry, is the opinion of Rockefeller and does not reflect the opinion of SunTrust Mortgage. NMLSR#659493