Year: 2017

12 Mistakes You Should Avoid During a Divorce

Unfortunately, for many people, some of the biggest mistakes that they make in their life come about during a divorce.  The divorce process is unfamiliar, stressful, and often painful.  There’s a lot at stake. Often, people settle for less than they deserve because of a long, drawn-out battle. In many cases, they fail to realize how the divorce will affect their children or they fail to understand that legal missteps made over the course of the divorce could affect them for many years to come. You don’t have to walk the same unfortunate path that many others have. Knowledge is power and with knowledge, understanding, and strength, you can dodge these top 12 mistakes that are commonly made during divorce proceedings.
  1. Not listening to your attorney – Not all divorce advice should be treated equally. Friends and family, trying to support you, are full of advice and often not afraid to offer it.  Your attorney is the best source of legal advice for the issues affecting your divorce. Choose your attorney carefully.  You want someone who understands you and your specific circumstances.  This is the person whose advice matters.  Your attorney will protect both your interests and your rights.
  2. Starting your case aggressively – Don’t start your case by going on the attack. Typically, in response, your spouse will attack you in return. Eventually, you may burn through thousands and thousands of dollars, have a life filled with drama, and hate your spouse. Avoid opening the floodgates of anger if you can. Let your attorney take the lead.  Remember, your goal is to divorce… not start a war.
  3. Selecting the wrong divorce process – Thankfully, you have several options to choose from. You have the option of selecting collaborative law, negotiation, or mediation. If things don’t work out, you can always fight it out in court. But, before you start the divorce process, carefully study your choices, talk with your attorney, and choose the divorce process that will get the best results for you and your family.
  4. Keeping your kids in the dark – Nothing is more frightening to children than not knowing what is going on. Talk to your kids.  They want and need information.  Keeping your children in the dark doesn’t spare their feelings, it makes them worry.  Explain how the separation and divorce will impact their day-to-day lives, and if at all possible, include your spouse in this discussion.  Listen to what your children have to say, their fears and concerns, and answer any and all questions honestly.  Don’t assume that all is fine with the kids just because they aren’t exhibiting problems.
  5. Not understanding custody – Failing to understand custody and what will work best for your situation can be a big mistake. Physical custody will be where your children live the majority of the time. Legal custody gives you the authority to make specific decisions on behalf of your children about things like education, religion, and medical decisions. Visitation or access is the amount of time spent with the children by the non-physical custodian. Make sure your attorney understands what you want for your children.
  6. Failing to plan for life after the divorce – Divorce is expensive and money may be tight, but it’s important to think beyond the present. Work with your attorney, accountant, and financial advisor to create a financial plan for after your divorce.  This will help provide guidance and clarity with respect to your assets, income, expenses, and liabilities, and help you make decisions about things like keeping or selling your home, receiving alimony and/or child support, acquiring life insurance, and taking investment assets over retirement assets.  Once you understand the numbers, you can move forward and create an affordable budget for your future.
  7. Failing to make the effort to collect complete financial information – While it’s possible to settle a case without collecting all the financial details of your spouse, it’s not something that a family law attorney would ever recommend. After all, you can’t equitably divide something if you don’t know what is there in the first place. Work with your attorney and take the time to collect and completely understand your finances and your spouse’s finances before the case is settled.
  8. Failing to understand that divorce is a marathon instead of a sprint – If someone tells you that divorce is easy or fast, don’t believe them. Divorce is often contentious and rarely a smooth and amicable process. It’s pretty much guaranteed that a divorce will cost more and take longer than you thought. You and your attorney will need to work through the process and that takes time.  An experienced family law attorney will guide you through each step and protect your rights.
  9. Using social media as a public divorce forum –Don’t post anything about your divorce on social media that you wouldn’t want to see introduced in court. No matter how frustrated you may be, don’t let your emotions get the better of you. Cyberspace is not the place to litigate your divorce.  Many cases have been destroyed over Facebook, Instagram, or Twitter posts. Even if the post has been deleted, anything posted online exists forever and digital forensics has become a major source of evidence in divorce cases.
  10. Signing documents without understanding them – Even if you trust your attorney and he/she wrote your divorce documents, it’s foolish to sign something without reading and completely understanding it. If you don’t understand a document, then take the time to ask your attorney to explain it to you, and keep asking until you understand.
  11. Confusing the tax ramifications of the settlement – It’s important to know that several actions during the divorce may have large tax ramifications, for example, selling your home. Make sure you understand these tax implications to keep your finances in order and discuss them with your attorney, accountant, and financial advisor, if necessary.
  12. Choosing to fight battles instead of the war – Choosing to fight over a small stipulation in child or spousal support and paying thousands of dollars in legal fees in the process is fighting the wrong battle. In the end, it is not likely worth it. Listen to your attorney and focus on what really matters in the big picture.
Divorce is an emotional time and it’s easy to make mistakes that may come back to haunt you in the future. Keep a level head. Consult your attorney and don’t be afraid to ask questions.  Being thorough now will make your life much easier after the divorce is final.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about divorce, separation agreements, and our family law practice, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

Do I Need a Separation Agreement in Virginia?

Unlike many other states, legal separation in Virginia is not granted by the courts.  Instead, a husband and wife, wishing to separate and divorce, may simply live apart, even under the same roof.  It is strongly advised, though, that they enter into a separation agreement, also called a marital settlement agreement or property settlement agreement.  This document states that the couple has agreed to:
  • live separate and apart
  • divide their marital property and debts in a mutually acceptable way
  • provide child support, custody, and visitation for minor children
  • include other appropriate provisions such as spousal support or maintenance
The act of simply leaving a spouse can be deemed spousal desertion.  Separation agreements provide that any future divorce will be on no-fault grounds.  Once the agreement is in place, and the parties have separated and lived apart for six months with no minor children, or twelve months with minor children, either party may file for an uncontested divorce on the no-fault grounds of separation.

What does a separation agreement cover?

A separation agreement should cover major life circumstances going forward, including, but not limited to the following items.  Your attorney will be able to tailor your agreement to your specific circumstances and protect your interests.
  • Property division
  • Division of debts
  • Visitation of minor children
  • Child support payments
  • Spousal support
  • Health insurance
  • Disposition of the marital home
  • Pension plans, IRAs, 401(k)s, and other retirement assets
  • Tax issues
  • Future dispute provisions

Do I need an attorney?

The short answer is no.  You can draft a separation agreement yourself.  But, as with all contracts and legal documents, it is best that you consult with a knowledgeable Virginia family law attorney with experience creating separation agreements.  You’ve heard that separation, divorce, attorney fees, and court costs are expensive.  But this is not the place to try to minimize costs.  By cutting corners during the separation agreement process, you may ultimately be harming yourself.  You probably don’t know what you’re entitled to under Virginia law, and the agreement you reach with your spouse may not be favorable compared to what a judge might award you in court. It’s also important to remember that just because you and your spouse are on friendly or civil terms now, this may not always be the case and your relationship may break down in the future.  If the language in your separation agreement is faulty, or the specifications regarding custody, visitation, support, and the division of property are not laid out properly, then you could be forced to either live with the terms of the signed agreement or spend time and money trying to clear up the ambiguities in court. Unfortunately, you may well end up spending much more in legal fees later to “fix” issues created by a faulty separation agreement, than it would have cost you to simply have a solid agreement drafted by an experienced attorney right from the start.

Why is a separation agreement important?

If you have absolutely no marital property, no joint debts, and no children, you probably don’t need a separation agreement to get a no-fault divorce.  You and your spouse will simply go your separate ways.  But that is not the norm.  A separation agreement provides for the future governance of your relationship, and also provides evidence to the court as to the date that you separated.  It can be the difference in waiting 12 months versus six months for a no-fault divorce. When properly drafted, this document leaves no doubt about the details of the ending of your marriage relationship.  It is always better to have a clearly written and signed agreement than to rely on verbal understandings.  In addition, if you have a Virginia separation agreement, your divorce proceeding will be simpler and it will be clear to the court that you have an uncontested divorce. A separation agreement is a legal document that will determine your rights, obligations, and responsibilities from your marriage over many years into the future.  A Virginia family law attorney spends considerable time drafting separation agreements with the goal of protecting your rights.  Your attorney will make sure that all the “what if” scenarios are covered.  A one-size-fits-all, fill in the blanks document that you find on the internet does not necessarily protect you or take into account your very specific situation.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about separation agreements and our family law practice, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

How Often Should I Review My Will, Trust, and Estate Plan?

There are two primary reasons for having an estate plan:
  • To make sure that your family and loved ones are taken care of to the best extent possible following your death, and
  • To provide clear instructions on what should happen to your estate following your death
Without a will or trust, the Virginia courts will apply state intestacy law to distribute your assets, regardless of what you wanted or promised.  The courts not only decide what happens to your assets, they may also decide what happens to your children.  Your will or trust and other estate documents are the most important legal documents you’ll probably ever sign. The goal of good estate planning is to ensure that your assets go to the people that you want to benefit after you’re gone.  Because life isn’t static and is filled with many changes over the years, your estate planning documents may need to change and be updated too. Many people create a will relatively early in life to achieve these goals, because they understand that death can, unfortunately, come at any time. But as you move through adulthood, your life will probably change in ways that impact both the assets that you own as well as the people in your life that you want to benefit. You get married, have children, buy a house, have grandchildren, have a pension or open retirement accounts… the list goes on and on.  You may have created a basic will at some point, even a do-it-yourself will, without the help of an estate planning attorney.  But as your life changes and assets grow, an attorney with expertise in estate planning will help you understand strategic estate planning methods that better fit your situation and provide additional protections and benefits for beneficiaries than simply passing property through a will. Your will and other estate planning documents should be reviewed whenever you have a life changing event.  But even without big life changes, it’s best to review your documents with a Virginia estate planning attorney every three to five years. Laws are ever changing and you want to be sure that your documents remain effective and efficient at expressing your wishes.

What events should prompt my estate planning documents to be updated?

  • Marriage
  • Divorce
  • Birth or adoption of a child
  • Children reaching the age of majority (18)
  • Death of a spouse
  • Death or incapacity of a beneficiary
  • Buying or selling a primary residence or vacation home
  • Buying or selling a major asset (boat, plane, collectibles)
  • A significant change in your estate’s value
  • Change in your executor, guardians, trustees, agents, or personal representatives
  • Receipt of an inheritance
  • Medical needs
  • Changes to state law
  • A move to a new state
  • Starting a new business
  • Planning for charitable or other organizational contributions
In addition to the list above, everyone should have all their estate documents reviewed before the age of 70 if you have an IRA or 401(k) that requires you to begin taking distributions at the age of 70 ½.

How do I change my will or trust?

There are several different ways to amend or update your estate planning documents and much depends on how big a change you are making.  It is best to consult an estate planning attorney when making changes to executed documents to ensure that all legal formalities are followed and the changes being made are effective. Codicil:  A codicil is the formal way to amend your will.  It is a way to add a new provision to or revoke a part of your existing will.  Adding a codicil to your will can do a number of things, such as revoke the inheritance of a previous beneficiary or establish a new beneficiary for inheritance. However, you should not attempt to make substantial changes to your will through a codicil. Once the codicil is written, signed, witnessed, and dated, it should be kept with the original will. Memorandum of Tangible Personal Property:  One issue you’ll want to consider when you’re writing your last will and testament is how you want your personal effects distributed, including things like jewelry, collectibles, antiques, artwork, china, silver, furniture, etc. In other words, who gets the grand piano and which daughter or daughter-in-law gets your diamond engagement ring.  If you have specific people in mind to receive certain items, you can list them and the property you’d like them to receive in a separate written list and attach it to your will.​  Using a personal property memorandum allows you to change these bequests without worrying about all the formalities of having a codicil or amendment signed and witnessed. It’s usually far easier to simply detach an old memorandum and replace it with a new one when you want to make changes. Revocation:  If you need to make major changes to your will, it may be more beneficial to rewrite your will than to edit or amend the existing one.  To revoke your existing will, simply state that your new will revokes any previous wills.  Then sign and date your revocation in your newly established will. It’s best to destroy all known copies of the old will so that your beneficiaries won’t be confused. Updating a Trust:  As long as your trust is revocable, you are able to make changes at any time. An irrevocable trust cannot be changed under any circumstances.  A revocable trust can be amended, revoked, or terminated at any time and for any reason. To make a change, you simple attach a signed and dated amendment to your revocable trust. The amendment may make changes to trust property, beneficiaries, or designations.  Be sure you attach your amendments to your original trust documents in order to reflect your changes. No matter what changes you need to make, be they large or small, the important thing to remember is an outdated will or trust means that the court must abide by your outdated wishes, regardless of the changes in your life or your current wishes. The laws of Virginia makes it relatively easy to update a will, trust, and other estate planning documents. This is a great time to speak with an estate planning attorney to assess all your documents and how updating your will or trust, along with incorporating other estate planning documents can best provide for you and your family for decades to come.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about wills, trusts, and our estate planning services, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

What is the Value of a Special Needs Trust?

A special needs trust, also referred to as a supplemental needs trust, provides for a person with a mental or physical disability and allows the beneficiary to receive gifts, lawsuit settlements, or other funds and yet not lose his or her eligibility for certain government programs, including, Medicaid, Supplemental Security Income (SSI), and other state benefits.  Under current Federal law, any inheritance of more than $2,000 disqualifies individuals with disabilities from most federal needs based assistance and some state public assistance programs may also be affected.  Creating a special needs trust may be essential to protect a disabled individual’s financial future. As the name implies, a special needs trust is not designed to provide basic support, but instead to pay for other items that cannot be paid for by public assistance funds.  This includes things like education, rehabilitation, personal care attendants, out of pocket medical and dental expenses, specialized equipment, insurance, transportation, and home furnishings.  The trust can also be used for life-enhancing items like computers and electronics, recreation, entertainment, and vacations. The primary advantage a special needs trusts offers over a direct gift or inheritance is that the assets in the trust do not actually belong to the beneficiary and so does not jeopardize the beneficiary’s eligibility for government programs. A special needs trust holds title to property for the benefit of the child or adult who is disabled. Because you cannot leave property or cash directly to your disabled loved one, you leave it to the special needs trust. In its simplest form, a trust is a relationship between the person supplying the trust funds, the trustee who administers the funds according to the donor’s wishes, and the beneficiary who will receive the benefits of the funds. The person who supplies the trust funds has the ability to set forth in a document instructions regarding how he or she wants the funds to be spent.

How do I choose a trustee?

The most important and often difficult issue in creating a special needs trust is choosing the trustee who will have discretion over the assets in the trust and will be in charge of spending money on behalf of the beneficiary.  You must choose a trustee who has the necessary expertise to manage the trust, including making proper investments, keeping the accounts, paying bills, and preparing tax returns. Though a professional trustee will have these skills, they may be unfamiliar with the beneficiary and his or her unique needs. If you are uncomfortable with the idea of an unknown outsider managing your loved one’s affairs, it is possible to simultaneously appoint both a professional trustee and a family member as co-trustees. Make sure that whomever you choose is financially skilled, well-organized, and, most importantly, ethical. Remember, the trustee you choose will have discretion over the assets in the trust, and will be in charge of spending money on behalf of the beneficiary. The special needs trust lasts for as long as necessary, which usually means the trust continues until the beneficiary dies, or the funds are entirely depleted.

How do I fund a special needs trust?

A special needs trust can hold almost any type of asset, including investments, stocks, bonds, a home, other real estate properties and cash.  But a parent or parents with a child with special needs should consider buying life insurance to help fund the special needs trust for the child’s future support. What may look like a substantial sum to leave in trust today may not be enough to continue the care that the parent(s) had previously provided. The more resources you have available, the better the support that can be provided the child. And if both parents are alive, the cost of “second-to-die” insurance — payable only when the second of the two parents passes away — can be fairly nominal.  By creating the special needs trust early, extended family and even friends have the opportunity to make gifts to the trust or include the trust in their own estate plan.

Do I need to consult an estate planning attorney?

The most important thing you need to do when creating a special needs trust is to make sure that federal and state benefits are not put at risk or invalidated, and that the beneficiary receives the individual care that the parent(s) provided when they were alive.  There are several different kinds of special needs trusts.  And since this is a complex area, it is best to consult a Virginia estate planning attorney with expertise in special needs trusts.  Your attorney will make sure that the trust protects government benefits and is customized to your child’s future needs.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about special needs trusts and our estate planning services, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

Your Divorce is Final. Have You Revised Your Estate Plan?

Your divorce is final, assets have been divided, child support, custody, and spousal support have been determined, and you’re ready to move forward with your life.  But you’re not quite done yet.  The final step in your divorce is an appointment with your estate planning attorney. The estate plan you created with your ex-spouse during your marriage needs to be revised and updated with new estate planning documents.  If you do not update and revise your estate plan, your ex-spouse or even your ex-spouse’s new husband or wife and children may inherit your assets.

If you have a will

During your marriage, you cannot disinherit your spouse through a will. After divorce, the best way to revise a will is to simply execute a new will, and revoke your old will.  This can easily be done by shredding or burning it, or by stating in the new will that you are revoking all prior wills. Making a new will ensures that your current wishes are reflected.  This includes the persons or entities you wish to receive your estate, the person you wish to be the executor of your estate, and most importantly, the person you choose to be the guardian of your minor children and their property. If you die and your ex-spouse is still alive, in all likelihood your ex-spouse will be awarded custody of your minor children. If both parents are deceased, or the surviving parent is determined to be unfit, the court will appoint a guardian. Though the court is not required to follow your guardianship choice, it most often will do so.  If you have sole custody of your children, and don’t want your ex-spouse to have custody if you die, you need to put your reasons in writing and attach that statement to your will for a judge to consider.

If you have a revocable living trust

As with a will, it is best to create a new revocable living trust after your divorce.  Minor children can be beneficiaries of the new trust, and your ex-spouse can be prevented from controlling their assets if you wish.  You can designate the new trust to be the beneficiary of various assets, such as pay-on-death bank accounts, transfer-on-death brokerage accounts, and life insurance policies. Even IRAs, 401(k)s, 403(b)s, and pensions can designate the trust as beneficiary, but there may be tax ramifications that you should discuss with your accountant and estate planning attorney.  If the divorce decree allows one party to remain in the family home, a trust may be used to shelter the property from creditors or a future spouse.  Depending upon your circumstances and goals, it may be necessary to set up more than one trust.

Beneficiary designations

Your spouse is probably designated as the beneficiary on your various bank and other financial accounts, life insurance policies, retirement and pension plans and social security benefits.  You will need to change the designation of such beneficiaries, or else those assets will pass automatically to your former spouse by operation of law and outside of your estate plan. As discussed above, if you are setting up a new living trust, you may want to name the trust as the beneficiary, especially if you have minor children. Otherwise, a beneficiary who is a minor will need a trustee or conservator to manage their inheritance, and the court may appoint your ex-spouse.  To make a beneficiary change you will need to obtain the necessary forms from your financial institutions, brokerage firm, or employer.

Powers of attorney

A financial power of attorney can give your agent broad powers, such as to sell your property and remove funds from your financial accounts. If you have appointed your spouse as your agent on any financial power of attorney, you should immediately execute a document revoking it and deliver a copy to all of your financial institutions. This may be done even while your divorce case is still pending. If you determine it is necessary, you can execute a new power of attorney appointing another trusted person as your agent.

Health care directives

If you have a health care advance medical directive or living will, you probably appointed your spouse to make medical treatment decisions for you when you are unable.  It is best if you revoke the document and execute new health care directives appointing a trusted person as your agent.  Again, this can be done while your divorce case is still pending. Your health care providers should be notified of the change and given a copy of the new document for your file.

Other considerations

Sometimes divorced couples remain friends and continue to trust each other on various matters. Nothing prevents you from leaving a gift to your ex-spouse in your will, or designating him or her as your beneficiary, your agent in a power of attorney, or custodian of minor children. The important thing to remember is that you should discuss your estate plan with an experienced Virginia estate planning attorney who will help you re-evaluate your plan, prepare and execute new documents, and make sure that your estate plan is complete and nothing has fallen through the cracks. This should be done as soon as possible to protect yourself as well as minor children.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about divorce and our estate planning services, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

Pet Trusts…What Happens to Fido When I’m Gone?

Your dog, cat, bird, horse, rabbit, guinea pig… are all important members of your family.  As part of the estate planning process, pet owners need to consider who will care for their pet(s) when they no longer are able to provide care themselves due to death or incapacity.  Should I leave my pet to a family member or friend? Can I support my pet financially after my death?  There are often many questions that an estate planning attorney can answer to give you peace of mind, and legal measures that you can take to ensure that your pet(s) will be taken care of in the future. When a pet owner dies without providing specific instructions for the care of his or her pet, the pet is treated as personal property, just like furniture, jewelry, and other possessions that legally pass to the beneficiaries under the pet owners will or trust, or to the heirs of the estate if the pet owner dies intestate.  When a pet owner becomes incapacitated, their pet is often left with whomever has taken over the management of the property and finances of the pet owner.  To remedy this situation and make sure that your pet is taken care of according to your wishes, you can establish a pet trust.  Virginia code 64.2-726 Trust for Care of Animal, outlines the planning of a pet trust in Virginia estate plans.

What is the purpose of a pet trust?

A Virginia pet trust is a legal document that can direct the physical and financial care for an animal or pet after the death or incapacitation of the owner. This includes any pet that is living at the time of your trust’s creation and named as a beneficiary of the trust.  It does not include any future pets that might be acquired.  The pet trust is active from the time of your death or incapacity until the death of your pet, or death of the last pet included in the trust.  A pet trust only covers pets that are explicitly named in the trust document.  If you have multiple pets, even multiple species, they can all be covered under the same trust.

In your pet trust you will determine:

  • Who will be the trustee, or the person in charge of the trust
  • Who will be the caretaker of your pet(s)
  • The beneficiaries (pet, or pets)
  • Reasonable expenses on behalf of the beneficiaries
  • Conditions of the trust
  • Responsibilities of the trustee
The Trustee:  When establishing a pet trust, you will need to determine a “trustee” or caretaker. The trustee will manage the trust and care for your pet. This is usually someone close to you who knows and likes your pet and is willing to take on the responsibility of pet ownership.  If you do not designate a trustee, the court will appoint an administrator who will oversee the management of the trust.  The trust property can only be accessed and used as the trust specifies.  The position of the trustee is to protect the trust beneficiaries, the named pet(s), and ensure the trust is well-managed.  If no family or friends are able or willing to act as caretaker, the pet owner may seek the advice of the pet’s veterinarian with regard to an appropriate organization to provide pet care. In some cases, the pet owner may consider designating a non-caretaker as trustee of the trust.  A trustee, who is not the caretaker, could be given the authority to enforce the trust in the event the caretaker is not acting in accordance with the provisions of the pet trust. Virginia law operates under the assumption that your named trustee is someone you will trust with the financial and physical responsibilities of caring for your pets.  Because of that, the trustee will not be subjected to the reporting, accounting, or appointments of court maintenance. Funding the pet trust:  The funding of a pet trust will depend upon the life expectancy of the pet, the standard of pet care desired, and the estimated cost of veterinary care, food, and other appropriate expenses.  You will need to review your estate and determine which assets will be included to fund the trust.  Assets may include property that is accumulating income like stocks and bonds, assets from the sale of your estate, or money that has been set aside for the purpose of funding your trust.  Any property not included or used by the pet trust will be redistributed within your estate. Standard of Pet Care:  A pet owner also may wish to include specific instructions within the trust detailing the standard of pet care to be provided.  This may include grooming, housing, feeding, veterinary services, and even things like exercise and socializing.  In addition, a pet owner may wish to clearly set forth the circumstances when surgery and other procedures, including euthanasia of the pet is appropriate, if ever, and provide guidance for the proper disposition of the remains after the death of the pet. Trustee compensation:  The pet trust may also be a source of income for the caretaker that you designate to take responsibility for your pet.  Assets within the trust may compensate the trustee and caretaker you appoint (if they are not the same person.) This compensation acts as incentive for the trustee and/or caretaker to continue caring for your pet(s) as you wished.

Termination of the Trust

When all of your pets that are covered by the pet trust die, the trust assumes the final expenses. The funeral, burial, cremation, or other end of life expenses are all paid by the trust.  The trust is terminated at the death of the last pet named under your Virginia pet trust. The remainder of any assets in the trust then reverts back to your original estate. Losing you can be completely life-altering for your pets and it’s important to have a plan in place. Knowing who will care for your pets when you can no longer take care of them will give you peace of mind.  Now is the time to consult an estate attorney about establishing a trust for your pets.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about pet trusts and our estate planning services, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

Advance Medical Directives… Don’t Leave End of Life Care to Chance

An advance medical directive, also sometimes called an advance health care directive, or living will is a legal document that gives you control over who makes medical decisions during times when you cannot make them for yourself because of incapacity, serious illness, or an accident.  These directives allow an individual, known legally as the declarant, to specify what his or her health care wishes are, how they should be carried out, and who can make decisions on their behalf.  This relieves a great deal of stress both from family members and physicians as the medical decisions can be made in advance by the patient themselves.  If you don’t have an advance medical directive and name someone you trust to oversee your care, important health care decisions may be placed in the hands of family members, doctors, or even possibly judges, who may know very little about you, your wishes, and what type of care you would want. In Virginia, advance medical directives are authorized under the Virginia Health Care Decisions Act.  To be legally binding, an advance medical direct must be in writing and signed by the declarant in the presence of two witnesses who also sign the directive. An advance medical directive should include the following three sections:
  • End of life care instructions: what treatments the declarant does or does not authorize with regard to his or her health care
  • Appointment of a healthcare agent or third party to enforce the directive and make healthcare decisions for the declarant when he or she can no longer make them.
  • Decisions as to anatomical gifts for organ and tissue donation.

What are the benefits of advance medical directives?

There are several benefits to creating an advance medical directive.
  • You can make your own health care decisions about your eventual care in advance.
  • Your directive and agent will speak for you and be your voice once you no longer can speak for yourself.
  • You can update, edit, or change your directive at any time.
Making decisions about life-prolonging medical treatments, such as hydration, feeding tubes, CPR, ventilator or respirator assistance, dialysis, and even antibiotics, when you are well and have time to think and consider what type and how much care you would want if incapacitated, in a coma, or terminally ill will give you peace of mind.  You may choose some, all, or no life prolonging treatments or extraordinary measures, or opt to receive pain medication and only palliative care.  And, you can specify certain treatments for a finite period of time, after which, if your condition does not improve, treatment should be stopped. Your advance medical directive only takes effect when you cannot speak for yourself, so again, you must plan carefully about what you want your directive to say when it takes the place as your spokesperson. As long as you are competent, regardless of your condition, you will make your own decisions. When you are not, your advance medical directive and agent will guide the decisions used in your treatment. Your directive can be changed at any time. If your health situation or personal beliefs change, you can edit, update or amend the details of your advance medical directive.  Be aware that this is a legally binding document and must be updated by legal means if you change your mind about all or part of your future medical treatment.

Who should I appoint as my agent?

An advance medical directive is also used to appoint an agent to carry out the declarant’s wishes, or otherwise to make decisions as to the declarant’s medical care.  Most people name a spouse, partner, close relative, or even a friend as their agent.  Under Virginia law, your agent must be at least 18 years old.  Your agent should, regardless of their own personal beliefs, be your advocate and be willing to enforce your advance medical directive and health care wishes.  Though your agent does not need to be a resident of the Commonwealth of Virginia, they must be able and willing to travel to Virginia if necessary.  Your agent will begin enforcing and making health decisions for you once you lack the capacity to do so for yourself, and must do so in person.

Who should have a copy of my advance medical directive?

Once you have created your advance medical directive, the declarant should inform his or her primary physician and a copy of the directive should be included in your medical records.  You should also make sure that copies are included in the files of specialists including cardiologists, oncologists, etc.  It is also a good idea to give a copy to your agent, so that it can be reviewed and discussed, if necessary.  You may want to share the details of your advance medical directive with your spouse, children, and other close relatives.  And as with all estate planning documents, your attorney should keep a copy in your legal file.

Get help from an estate planning attorney

An advance medical directive is not a one-size-fits-all document.  Meet with an experienced estate planning attorney to ensure that your final wishes as to medical care are carefully detailed so that they can be carried out as you planned.  In this way, you can make sure that your family members do not undergo the strain of trying to make key medical decisions on your behalf, during a stressful time.  In Virginia, Melone Law, P.C. is here to help. We offer a full range of estate planning services, including wills, trusts, powers of attorney, living wills and advance health care directives, estate tax planning, guardianship and conservatorship, and contested estate matters.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston, and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about advance medical directives and other estate planning services, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

DIY Estate Planning…Is it Worth the Time and Trouble?

The Internet has made it very easy to find answers and instructions on just about anything, including how to develop a do-it-yourself (DYI) estate plan. There are websites and software packages, along with DIY estate planning books and kits that tell prospective customers that you no longer need an attorney to create a will, trust, durable power of attorney, or advance health care directives.  If you follow the simple instructions you’ll create your own estate planning documents that will be both legal and enforceable. Though you’ll often hear the argument that it’s inexpensive and easy and that a DIY estate plan is better than nothing at all, the consequences of not fully understanding the process and making a mistake to save a few dollars are often too great.  As you consider your options, here are a few serious potential pitfalls of creating a do-it-yourself estate plan.

Valuable attorney advice…speak with an expert

Do-it-yourself wills and trusts, as well as other documents, lack the most important component of a solid estate plan… the advice and counsel of an estate planning attorney.  DIY estate planning sources provide forms, but don’t provide legal advice.  If you read the fine print, they make it clear that they are prohibited from giving legal advice and are never a substitute for an attorney.  Your estate plan involves much more than the production of documents. The most crucial aspect of any properly created estate plan involves an in-depth discussion about not only your estate, but also your specific wishes and goals.  A good estate planning attorney is both an investigator and an educator.  It’s impossible to know, without legal knowledge and experience, what the best solution is to your individual situation. The actual documents produced are simply the tools used to put a plan that has been specifically tailored to your circumstances, wishes, and goals, into effect. Estate law is determined by each state and the laws that govern an estate are determined by the state where the person resides when he or she dies. Individual state laws vary greatly on a lot of estate issues, including requirements for executing estate planning documents. Some online companies offering DIY estate planning documents assure consumers that these documents comply with requirements of the maker’s state of residence.  But that may not be the case.  An estate plan that is completed by a Virginia estate planning attorney will be written to comply with all current state laws.

Do you really want a one-size-fits-all plan?

Though online estate planning software may produce a legally enforceable document, it is not flexible. It’s a one-size-fits-all, fill-in-the-blanks solution. It minimizes many of the available estate planning options that might be best for your situation, in order to create a process and document that is easy for you to comprehend and follow. The simplicity built into the online process usually cannot and does not address many of the more complicated, yet common areas that may be specific to your circumstances.  For example, the estates of families with young children are much different than those with adult children no longer living at home, or those of families with a special needs child. The software treats all these scenarios the same way and asks the consumer to make estate planning decisions, often without the expertise or understanding to do so wisely.  Simply put, DIY estate plans do not have effective tools that protect the estate or the beneficiaries.

Are you making mistakes that jeopardize your estate plan?

Do-it-yourself software is typically set up to only handle simple estates and can’t deal with even the most common complexities such as children from a prior marriage, property that has appreciated in value resulting in capital gains, or estates that are large enough to be subject to estate taxes. In addition, DIY solutions generally fail to take advantage of sophisticated estate planning strategies because a one-size-fits-all package can’t account for an individual’s unique circumstances. A DIY estate plan is made by going through an online questionnaire and there is always the risk of inadvertently making an error because you don’t understand the instructions or legal terms, give an incomplete or inaccurate answer, or even skip a question that doesn’t seem relevant to you. If any of those things happen, one of two results may occur: either your estate plan doesn’t do what you think it does, or it could be invalid in part or in its entirety. The result is that the documents you create could include omissions or contradictions, be invalid, ineffective, or contain legal language that has consequences which you never intended.  All of this can complicate the administration of your estate.  Since your DIY estate planning documents are not reviewed by an attorney, you might not know if that is the case during your lifetime. But unfortunately at your death, your beneficiaries will find out and may suffer the lasting and potentially expensive consequences of your mistakes.

Make sure your final wishes are carried out

Saving time and money by making an online DIY estate plan may sound like an appealing idea, but there are many pitfalls and risks. The best way to ensure that your wishes for taking care of your loved ones and distributing your property are carried out after your death is to consult with a knowledgeable and experienced estate planning attorney. In Virginia, Melone Law, P.C. is here to help. We offer a full range of estate planning and probate services including wills, trusts, powers of attorney, living wills and advance health care directives, estate tax planning, guardianship and conservatorship, and representation for contested estate matters.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and serves the Northern Virginia area.  Our practice areas include Family LawDivorce and Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about our estate planning services, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

Probate: The What, When, Where, Why and How of Probate

We’ve all heard the term probate, or that a will has to go through probate.  But, what exactly does the term mean, what is involved once probate begins, and how does it affect beneficiaries? Probate is the official way that an estate gets settled under the supervision of the court.  In the Commonwealth of Virginia, the Circuit Court or, in most cases, the clerk of that court in which the deceased person lived, has jurisdiction.  The purpose of probate is to prevent fraud after someone’s death and to prove before the court that the document offered as the last will and testament of the deceased is genuine.  Probate gives someone, usually the surviving spouse, adult child, or other close family member or friend, who is named as the executor of the estate the power to:
  • collect estate assets and keep them safe
  • have the assets professionally appraised, if necessary
  • pay bills, debts, and taxes
  • distribute the remaining property to the beneficiaries as the will directs.
If probate is necessary, the executor starts the process by going to the appropriate circuit court. The executor will need:
  • the original signed will
  • a certified copy of the death certificate
  • an estimate of the value of all estate assets
  • a list of heirs
There will be a probate tax due based on the estimate of the value of the assets in the estate. There are also other court fees to open probate. All of these fees can be paid from estate assets.  The circuit court or clerk will give the executor a certificate of qualification. This document affirms that you are the estate’s personal representative and have legal authority over the deceased person’s assets. An original will, not a copy, must be presented to the clerk.  The clerk will review the document and make sure that it meets all requirements under Virginia law, and if so, the document will be recorded by the clerk.  A valid will must be in writing, signed by the deceased, known as the testator, or some other person in the testator’s presence and at his or her direction.  The signature must be made in the presence of at least two witnesses.  A hand-written will, also called a holographic will, signed by the testator is valid under Virginia law.  If the executor presents a hand-written will for probate, the handwriting must be established as that of the testator by two disinterested witnesses.  A will may be self-proving if a properly executed affidavit is attached with the will. The clerk will accept a self-proving will for probate without further proof by witnesses.  If the will is not self-proving, at least one of the two witnesses who have signed the will must appear at the time of probate. Depending on the size and complexity of the estate, probate can be a lengthy and sometimes complicated process.  Final distribution of the estate can take from as little as 6 months to several years.

What if there is no will?

If there is no will, or the person named in the will as executor isn’t available or chooses not to serve, the probate court will appoint an administrator. The administrator does the exact same job as an executor. Under Virginia law, anyone who will inherit from the deceased person can be appointed and agree to become the administrator. Both executors and administrators are commonly referred to as personal representatives or fiduciaries.  If there is no will, the administrator will distribute the estate as directed by Virginia intestate law.

Are there any assets that do not have to go through probate?

Not all assets in an estate must go through probate.  Some assets transfer automatically to beneficiaries with no probate required.  These include:
  • assets the deceased person owned with someone else in joint tenancy or tenancy by the entirety which pass automatically to the surviving owner
  • assets that have a designated beneficiary outside of the will, for example, IRAs or 401(k) plans, for which the deceased person named a beneficiary
  • payable-on-death and transfer on death bank accounts
  • life insurance proceeds or pension benefits that are payable to a named beneficiary
  • assets held in a revocable living trust
  • “Small estates” – If the value of the estate doesn’t exceed $50,000, there’s a simple affidavit procedure and it doesn’t require court supervision to settle.

Closing the Estate

After debts and taxes are paid, the fiduciary distributes the assets to all beneficiaries, following the instructions in the will. If there is no will, Virginia law dictates who inherits. When the court is satisfied that all debts and bills have been paid, tax returns have been filed, and all assets have been distributed, it will close the estate and relieve the personal representative of his or her duties.

Consult an estate planning attorney for help

Unless you are knowledgeable about wills, trusts, and probate, it may be helpful to seek legal advice before probating a will.  An attorney can review the will and give you direction.  An attorney can also advise you as to whether probate is necessary based on the circumstances of the estate.  If the will is not self-proving, an attorney can assist you with the requirements for witnesses, or if witnesses are not available, alternative procedures for admitting the will to probate.  In a case where the original will is lost or if there is a dispute over whether you have a valid will of the testator, an attorney can provide advice on appropriate actions.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston, and serves the Northern Virginia area.  Our practice areas include Family Law, Divorce and Special Needs Children, Traffic Ticket Defense, DUI/DWI Defense, and Trust and Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about trusts and estates, wills, and probate, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

Case Study: How Does a Revocable Living Trust Work?

In our last blog, we discussed revocable living trusts and their benefits.  In this blog, we’ve created a simple case study to illustrate the value of a living trust and estate planning, and how it is used once the grantors have gotten older, incapacitated, or have died. Meet Jim and Susan.  They have been married for over 45 years and are now in their 70s.  They own their home, outright, and other possessions they’ve accumulated over the years (furniture, jewelry, artwork, etc.)  They own a small beach house in Bethany Beach, Delaware.  They also have bank accounts, retirement accounts, life insurance policies, and a small investment portfolio.  They both receive monthly Social Security benefits, and Jim also receives pension benefits now that he’s retired.  Their estate does not exceed the Federal Estate Tax Exemption ($5,490,000 in 2017.) Working with an estate planning attorney, Jim and Susan executed a revocable living trust when they were in their late fifties and at that time transferred all of their assets into the trust.  They named themselves as co-trustees so that they both would have control of their assets, and named their son, John, as successor trustee after their death or incapacitation to continue to manage their assets and/or disperse them to their beneficiaries. Their estate planning attorney helped them complete their estate plan by drafting a living will and advanced healthcare directives for each of them so that their personal wishes regarding life support and healthcare can be followed.  They also each have a durable power of attorney naming their spouse as agent.

Incapacitation and death

Jim developed Alzheimer’s disease in his late 60s.  He can no longer make decisions for himself and Susan can no longer take care of him.  Susan, with the help of Jim’s doctor, decided to put Jim in a nursing home.  Because of the healthcare directive, she will not have to go to court to be named his legal guardian and will be able to make decisions about his personal care.  Susan also became the sole trustee of the trust without any court action being required and can use the trust assets for Jim’s care. Between her authority in the power of attorney and as trustee, Susan does not need to petition the court to be Jim’s conservator and she can make financial decisions on his behalf right away. Two years later, Susan had a stroke and could no longer take care of Jim’s or her own affairs.  Her son, John, becomes successor trustee without having to petition the court for guardianship or conservatorship of either parent, and uses the assets in the trust to take care of both Jim’s and Susan’s needs. After the death of his parents, John took care of their funerals and related expenses, paid all final bills, and filed the appropriate income tax returns.  Within a month or so, John distributed the estate per the terms outlined in the trust documents.  No probate or other legal proceedings were required or necessary, even for the out of state beach house in Delaware.

Advantages of the Living Trust

  • Though the upfront costs of setting up the trust and funding it are usually more expensive than a last will and testament, the savings of numerous court proceedings and probate, later on, may make it worthwhile.
  • When the trust is prepared correctly, it avoids all probate. It even avoids multiple probate proceedings in different states where real estate or other assets are located.
  • By avoiding probate, money and other assets in the living trust are almost always distributed sooner to the beneficiaries.
  • The trust is a private document. Some financial institutions may require or request copies of the trust agreement before complying with its terms, but there are no public aspects to a trust as there are with a will and probate.
  • You will save attorney’s fees and costs, as well as time.  The successor trustee does not have to deal with probate or court appearances for guardianship or conservatorship proceedings when the grantor(s) become incapacitated or die.
  • A trust is flexible and can be changed or even cancelled at any time. As long as the grantor’s intentions can be expressed in words, they can be embodied in a trust.
  • A trust is easy to amend. It can be amended by a document signed only by the grantor. No witnesses or other formalities are necessary as with a will or codicil.
  • Copies of a trust document can be used as a substitute for a lost original. If an original will is lost or misplaced, the law presumes that the will was revoked, and someone will have to petition the court to use a copy in place of the original will. If the copy is not validated, the estate will be distributed to the beneficiaries according to the Commonwealth of Virginia law.
  • A trust is more difficult to contest than a will or codicil, because the grantor not only signed the documents but acted on them.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston, and serving the Northern Virginia area.  Our practice areas include Family LawDivorce & Special Needs ChildrenTraffic Ticket DefenseDUI/DWI Defense, and Trust & Estate Law.  Our philosophy is to provide all of our clients with the highest quality legal representation, innovative legal solutions, and unsurpassed dedication to customer service.  Through our high standards, we strive to be a trusted resource to our clients. We know from experience that a successful attorney-client relationship depends on our ability to understand your needs and objectives.  For more information about estate planning and revocable living trusts, contact our office today at 703.995.9900 or visit our website:  www.MeloneLawPC.com.
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