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Secrets of Establishing a Revocable Living Trust and Avoiding Probate
Many individuals devising an estate plan are motivated to avoid probate in Virginia for good reason. The probate process can be long and tedious, holding up funds needlessly from your beneficiaries. A revocable living trust can help avoid this process by transferring your assets to a trust to be privately administered outside the supervision of the court.
Elements of a Revocable Living Trust
A revocable living trust is established by creating a trust agreement in which the grantor transfers the assets named in the trust to be managed by an appointed trustee for the benefit of his or her beneficiaries. The assets are legally owned by the trust and not by the individual. Therefore, when the grantor passes away, he or she does not own the assets and they are not part of the probate estate. This process helps grantors avoid probate in Virginia.
Funding a Revocable Living Trust
At Golightly, Mulligan & Morgan, our trusts and estates attorneys often see clients come in with formal trust documents that are well organized and thorough. However, Mr. Golightly has encountered many such trusts that contain a blank schedule of assets. The schedule of assets should include all property owned by the trust. While another trusts and estates attorney may have established the trust to hold property, without assets being added to the schedule, the trust fails to serve its purpose.
To successfully avoid probate, the trust must own the assets. If you own assets individually at the time of your passing, these assets will most likely go through the probate process, defeating the purpose of the trust in the first place.
You can work with our estate planning attorneys to properly fund your trust by having proper deeds drawn up, transferring ownership and changing the beneficiary designations on retirement accounts, annuities or life insurance.
Contact an Experienced Estate Planning Lawyer
If you are considering establishing a living revocable trust, it is important to contact an experienced lawyer for trusts and estates. Our lawyers at Golightly Mulligan & Morgan for trusts and estates take pride in our ability to provide comprehensive family estate planning strategies that protect our clients’ interests and their loved ones. Our trusts and estates lawyers can talk to you about your final wishes and come up with an approachable plan that is tailored for your needs.
Call us today at 804.658.3873.
What Happens if You Die Without a Will?
There are many benefits to having a will put in place, such as designating to whom your property will go and naming a guardian for your children. However, there are no benefits to leaving your estate unattended. At Golightly Mulligan & Morgan, an experienced estate planning lawyer can make estate planning understandable and approachable while protecting your loved ones and property.
Consequences of Dying Without a Will
A will dictates how your property will be distributed upon your passing. If you die without a will, Virginia’s default rules will be followed rather than you being able to determine what happens to your property. If a married person dies without a will and has children from a prior relationship, the surviving spouse is only entitled to one-third of the decedent’s estate and the decedent’s children will receive the other two-thirds. If the person has no children, or only has joint children with the current spouse, the surviving spouse will receive the entire estate. If the person has children and no spouse, the children will inherit the entire estate.
If the decedent was not married and had no children or grandchildren, the laws of intestacy in Virginia give the estate to the following family members in this order:
Nieces and Nephews, and so on down the line
If you have no living family members, your estate goes to the Commonwealth of Virginia. As you can see from these default rules, there may be unintended consequences of not having a will, such as your property going to a family member with whom you are not close.
Drafting of Your Last Will and Testament
The easiest way to avoid these consequences is to draft a last will and testament that establishes how you want your property distributed. An estate planning attorney can draft this document for you to ensure that it has full legal effect.
Estate Planning Trusts
An alternative or supplement to your last will and testament is to use an estate planning trust. There are several different types of trusts for estate planning that our trust and estate attorney may recommend, depending on your individual circumstances. Some trust options may include:
Living revocable trust
Our estate planning attorney can discuss the options that are available to you and which type of trust makes sense for you.
Contact an Experienced Attorney for Wills and Trusts
At Golightly Mulligan & Morgan, we are committed to providing effective trust and estate planning strategies that are designed to protect your interests. We listen compassionately to our clients’ wishes and guide them through the laws and obstacles that may affect those wishes. We know that you have your choice of estate planning firms and would like you to consider our trust and estate attorney to provide you with a customized estate plan. We prepare wills, trusts, powers of attorney and other estate planning documents. We also provide assistance in estate tax planning and throughout the probate process for surviving family members. If necessary, we can also assist with the appointment of guardians and conservators for incapacitated individuals.
Two Types of Testamentary Trusts for Estate Planning
When drafting your will, you may be thinking about how you would like to leave an inheritance for your children. Because minor children are unable to inherit gifts of a considerable size, you are able to use estate planning trusts that hold onto your assets until your child is old enough to inherit them.
While there are several types of trusts for estate planning, testamentary trusts are particularly useful for assets that you would like to leave to your children.
No matter which type of trust you choose, it may be a good idea to run it by a professional. Using the services of a capable trust and estate attorney ensures that your trust will be legally sound and your family will not have to worry after you are gone.
Planning that Ensures Your Loved Ones and Property Are Protected
It is never too early to begin trust and estate planning and drafting. Setting up a trust is a good way to be certain that your family has everything they need.
In a testamentary trust, your assets are transferred into the trust only upon your death. These trusts both allow you to leave a substantial gift for your children and appoint a trustee to manage that gift for your children until your children reach an age that you choose.
Different Testamentary Trusts
There are two types of testamentary trusts:
Separate Trust Shares for Children. If you want everything to remain equal, talk to your trust and estate attorney about separate trust shares for your children. Separate trusts are simply different trust shares created for each child. If, for example, you are married and have two minor children, both you and your spouse can set up separate but equally testamentary trusts for your two kids. When you and your spouse pass away, your estates are split equally into the two separate trust shares and managed separately for each child.
These trust shares act independently of each other, and the respective share is distributed to each child once the child has reached the age that you have chosen for the child to be able to receive the assets outright.
Family / “Pot” Trust. Sometimes, life is not always equal. Your children have different needs, and the costs for providing for them cannot necessarily be split evenly. To borrow from the first example, say you and your spouse have two children, but one of your children has special needs. That child may need therapy or special equipment, which can cost more than the other child’s basic needs.
A pot trust lets you dictate the spending based on each child’s needs. Your estate planning attorney can help you draw up specific instructions for the appointed trustee to ensure guidelines are established and understood. In a pot trust, all assets in the pot trust are managed and used for the benefit of all of your children. The pot is then split into separate but equal shares only after all of the children have reached the age that you have chosen.
Contact a Virginia Estate Planning Lawyer
At Golightly, Mulligan, & Morgan, our goal is to make estate planning understandable and approachable for our clients. As one of the premier estate planning firms in the Commonwealth of Virginia, we take the time to make each client a priority and ensure their needs are met. If you are looking for an attorney for wills and trusts, contact us today.
Estate Planning for Blended Families
Today’s typical family consists of some version of a blended family. Due to divorce or loss of a spouse, many individuals have children from a prior marriage that they consider as part of their estate plan. Estate planning for blended families requires a thoughtful approach that includes the needs of all members of the family.
Blended Families and Wills
Couples may be surprised when they think through what may happen when they pass. Many spouses provide an “I love you” will to their spouse in which they give everything they own to their spouse.
However, if they do this, the surviving spouse will get everything. He or she will be the legal owner of the property. The surviving spouse has no obligation to provide for the deceased spouse’s children from a previous relationship without some additional planning. This means those children can wind up disinherited. If you want your children to receive something upon your passing, you need more than an “I love you” will.
Typical wills for blended families may include specific provisions regarding what type of property will pass to the children of a previous marriage. These specific designations can help avoid confusion.
Wills for blended families often contain a no-contest clause. This clause is designed to prevent beneficiaries from arguing over the share left in the will and from expensive litigation. It declares that if a child or spouse challenges the provisions of the will, that person will forfeit his or her share.
Blended Families and Trusts
One effective blended family estate planning tool is to incorporate a trust. Trusts are legal documents in which one can designate how certain property will be treated during their lifetime and after their death. You may specify that trust funds be used to pay for your health and welfare during your life, then the same for your spouse, and then the same for your children.
Alternatively, you may provide for periodic distributions to your children or for distributions at certain ages.
Trusts provide greater flexibility because they allow you to manage assets and income that generates from them, according to your specific instructions. Some types of trusts that you may discuss with your estate planning attorney include:
Revocable Trusts – This type of trust allows you access and control over the trust assets during your lifetime. You can direct who receives the trust assets and change the trust provisions.
Marital Trusts – Marital trusts can provide for an unlimited amount of transfer from one spouse to another to help avoid estate planning taxes. They often allow a person to provide income for a second spouse for life while also ensuring the children of the decedent will receive an inheritance upon the passing of the second spouse.
Life Insurance Trusts – This trust avoids life insurance being part of the grantor’s estate.
Golightly Mulligan & Morgan makes estate planning understandable and approachable. We can work with you to ensure your loved ones and property are protected.
We Are Expanding Our Estate Planning Team in Richmond, VA
Kellie Truslow joins Golightly Mulligan & Morgan PLC as an Associate Attorney
Golightly Mulligan & Morgan PLC was founded in 2012 by attorneys Scott Golightly, Michele Mulligan and Mary Morgan to provide legal services in the areas of estate/business planning, commercial litigation, malpractice defense, and community associations law.
Over the next 5 years, Golightly continued to grow the estate planning business in a variety of ways including: adding content to www.golightlylaw.com, which includes a blog that has become his clients' favorite for estate planning advice, educational videos, as well as creating a Will Workshop that now informs and educates married couples with small children about how to ensure their property and loved ones are protected.
Now as a part of this continued growth, Golightly needed to expand his workforce.
Meet Kellie Truslow
Kellie is a native Richmonder, growing up in Glen Allen. Kellie graduated from Virginia Commonwealth University in Richmond with a bachelor's degree in History and then enrolled in law school in North Carolina.
Growing up watching her grandparents taught her nothing is more important than protecting your family, your estate, and your wishes. She believes this experience has influenced her commitment to making sure clients estate wishes are known and followed. That is why she has decided to spend her associate attorney life helping families and singles make the estate planning process easier for everyone involved.
Kellie takes pride in drafting the essential documents that give her client control of what happens and what doesn't happen to their estate. Helping them ensure they've protected their loved ones and leave a legacy they want to be remembered by.
Why Your Business Needs a Buy-Sell Agreement
Why are buy sell agreements important? How do buy sell agreements work? What does a buy-sell agreement do?
If you own all or part of a business—any business—you should know about buy-sell agreements. Unless you plan to be lucky forever, you’d better have one. Without it, a closely held or family business can face a world of financial and tax problems on an owner’s death, incapacitation, divorce, bankruptcy, sale or retirement.
Four Ways to Avoid Probate in Virginia
All of us would like to pass on a little something to our children or other loved ones. We save and save to make life a little easier for the people we care about.
Avoiding the delays and costs of probate is much easier than you think. Here are four common ways to keep more of your estate in the hands of the people who matter most.
Malpractice Issues in Estate Planning
In most cases, an attorney owes no duty to a non-client and therefore cannot be successfully sued for malpractice by a party they have not represented. One exception to this rule is in estate law. Of course an estate-planning attorney owes a duty to their client prior to the client’s death. Some areas in which estate-planning attorneys can be found negligent include drafting errors, errors in execution, failure to accomplish a testator’s intent, failure to update an estate plan based on new laws or facts, failure to investigate heirs and assets, allowing execution when the testator lacks testamentary capacity, and delay in implementation of an estate plan. Under the privity doctrine, lawyers are directly liable to their clients for breaching their duty. The liability may extend to third parties, specifically the intended beneficiaries. A Richmond lawyer and his firm are liable for a $603,409.90 bequest that should have gone to the Richmond Society for the Prevention of Cruelty to Animals (“RSPCA”), as a divided Supreme Court of Virginia has upheld a trial court’s decision in a legal malpractice case. A Chesterfield County resident requested a Richmond lawyer prepare her will to leave her estate to her mother, but if her mother predeceased her, then the estate was to go to the Richmond Society for the Prevention of Cruelty to Animals. The will was prepared and executed in 2003. The client passed away in 2008, after her mother had died, and the attorney, as the estate’s co-executor notified the RSPCA that it was the estate’s sole beneficiary. However, a title insurance company said the will left only the tangible estate to the RSPCA, but all real estate passed to her heirs at law. The RSPCA sued the attorney who prepared the will for legal malpractice. At trial, the parties stipulated that the attorney had a duty to prepare his client’s will accurately and that he did not accurately incorporate her intent to give her real estate to the animal welfare organization. The RSPCA’s ultimate bequest, less expenses, would have totaled $675,425.50. A Richmond Circuit Court found the sum of $603,409.90 as damages for the RSPCA. A six-member majority of the court upheld the ruling in its June 2 decision. Justice Elizabeth McClanahan dissented, saying the RSPCA did not have standing to sue for breach of the contract for legal services between the attorney and his client. The rule of strict privity in legal malpractice actions has not been abolished in Virginia, McClanahan said, and any decision to abolish the common law privity requirement should be left to the General Assembly. Abandonment of the privity doctrine is “particularly troublesome” in the context of estate planning services, McClanahan said, under the majority holding that the legal malpractice cause of action accrues on the date of the client’s death. This means an attorney may be held liable for malpractice decades after the will was drafted, she said. Golightly Mulligan and Morgan can assist you with both estate-planning needs and professional liability litigation. Contact us for more information or a consultation.
A Will and a Living Will: What is the Difference?
Although it is a difficult subject to discuss, what will happen to your possessions after you are gone is something everyone should consider. Whether you have many assets or only a few, who will gain control of them should be predetermined before there is ever a need to act upon those wishes.
Some estate planning documents and terms can be confusing. A competent estate planning attorney can explain what each term means and how it applies to your particular situation. You should consider both your death and the time leading up to your death when preparing these documents. While a last will and testament serves to distribute your assets after death, a living will, also known in Virginia as an Advance Medical Directive, allows you to prepare for the time prior to your passing. It is important to distinguish between the two.
A last will and testament does not go into effect until after you die. Its purpose is to distribute your assets such as real estate or tangible personal property to those you wish to inherit them. A living will is designed to prepare for any time you may not be able to make medical decisions for yourself. If you lapse into a coma, if you lack capacity to understand your medical condition and make decisions, your family members and other loved ones will know what you wish for them to do on your behalf, thereby sparing them the emotional, financial and legal burden of deciding your end-of-life care.
A Last Will and Testament should nominate someone to carry out your instructions. Under Virginia law, you can appoint anyone over the age of 18. You should discuss it with the person ahead of time to make sure that 1) they are willing to serve; and 2) they are responsible enough to accept the task at hand. This person is known as an executor and they have a duty to make sure that your property is distributed as you requested in your will.
Different than a last will and testament, a living will is a person's declaration that, under certain conditions, the person wishes to die naturally and without artificial means prolonging the dying process. A person making a living will can specify the conditions triggering the living will’s instructions, and family members are bound to accept those wishes.
It is highly recommended that you have professional legal guidance at the drafting and signing of these documents. An attorney can foresee potential legal disputes and ensure that your instructions will be carried out. Legal guidance ahead of time can prevent your will from being contested or costing your beneficiaries greater expense in legal fees because of poor planning. It is also a good idea to periodically review whether your old estate plan needs to be updated, particularly if you have had a change in finances or circumstances.
Golightly Mulligan and Morgan has vast estate planning experience. Contact our office to set up a consultation to review your estate plan today.
Mary Morgan Joins the Firm, Changing Its Name to Golightly, Mulligan & Morgan
On January 1, 2016, Golightly, Mulligan & Booth became Golightly, Mulligan & Morgan and added an office in Chesapeake with the addition of partner Mary T. Morgan, formerly of Cooper, Spong & Davis in Portsmouth. Jerry Booth has been retained as of counsel for the firm.
Ms. Morgan focuses on professional liability defense and defense of bar complaints and handles general civil litigation matters. She is admitted to practice in all of the state courts of Virginia, the United States District Court for the Eastern District of Virginia and the Western District of Virginia, the United States Bankruptcy Court and the United States Tax Court and has tried numerous cases in the General District Courts, Circuit Courts and the United States District Court.
Ms. Morgan is a graduate of the University of Richmond School of Law was named to the 2015 Class of “Influential Women of Virginia” by Virginia Lawyers Weekly. She is president of the Norfolk and Portsmouth Bar Association, a director at large for the Virginia Association of Defense Attorneys, secretary of the James Kent American Inn of Court, and a past president for the Hampton Roads Chapter of the Virginia Women Attorneys Association. Ms. Morgan also serves as the chairman of the Board of Directors for Edmarc Hospice for Children.
Attorneys Michele Mulligan and Scott Gollightly formed the firm in June of 2012. “I am honored to join with two such reputable attorneys and fine people as Michele and Scott,” said Ms. Morgan. Like Ms. Morgan, both Ms. Mulligan and Mr. Golightly are graduates of the T.C. Williams School of Law at the University of Richmond. Ms. Mulligan also received an MBA from the University of Richmond and has over twenty years of experience in the defense of professionals in malpractice claims. She generally practices in the areas of civil litigation, including professional liability, real estate and business disputes, as well as in the fields of community association law and insurance coverage. Mr. Golightly grew up in Newport News and received his B.A. from Christopher Newport University. His practice is centered on estate planning, entrepreneurial and corporate law, and business succession.