Month: May 2018

Estate Planning…What Do Wills NOT Do

As discussed in previous blogs, it’s important to have a will and estate plan in place.  But though there are many advantages to creating a will, there are some things a will simply can’t do.  A will is the perfect document for parents with minor children to use to designate a guardian for their children, minimizing court intervention and honoring their wishes.  A will is also the right estate planning document to use to designate an executor for your estate. You can also, through a will, choose to provide for specific persons who would not otherwise be provided for under Virginia state intestacy laws, such as friends, godchildren or stepchildren. There is no doubt that you need a will, however you also need to understand the limitations of a will.  For this reason, it is always advisable to meet and discuss your needs and wishes with a knowledgeable and experienced Virginia estate planning attorney who can help you determine which estate documents you need for your specific situation.

Here’s what a will cannot do:

  • A will cannot help you avoid federal estate taxes, although some kinds of trusts can reduce or postpone tax liability.
  • If you hold property with another person through joint tenancy, tenancy by the entirety or community property with right of survivorship, your will cannot change the beneficiaries of such properties.
  • A will cannot help you avoid probate, although any property you have transferred to a living trust will not go through the probate process.
  • If you have life insurance for which you have named a specific beneficiary, then you cannot designate a different beneficiary, or any beneficiary of that account, in your will.
  • Any money you have saved in a retirement account, IRA, 401(k) plan for which you’ve named a beneficiary does not go through your will.
  • Some stocks and bonds held with a transfer-upon-death designation will not go through your will.
  • If you have a payable-upon-death bank account, it will not go directly to beneficiaries and not through your will.
  • You cannot leave a gift in your will which is contingent on the marriage, divorce, or change of religion of a beneficiary.
  • You cannot leave money in your will for an illegal purpose.
  • You cannot provide long-term care for a loved one in your will. Trusts can provide long-term care for loved ones, in particular, special needs trusts can provide for loved ones suffering from incapacity or disability.
  • You can’t leave money to your pets in your will. However, you can leave your pet to a person who has agreed to provide a good home for said pet, and leave that person money to assist in paying for any expenses related to the pet. Through use of a trust you can establish ongoing care for any of your pets.

Leave a separate document regarding your funeral or memorial service

If you have spelled out your wishes for the disposition of your body, your funeral arrangements or memorial service arrangements in your will, be aware that wills are seldom read until days or sometimes weeks after the death. This is generally too late to be of any help to those who are left to plan your funeral or memorial service. It is a good idea to have a separate document created which clearly spells out your wishes for disposition of your body and other arrangements, making sure your loved ones have a copy or know the location of this document.

Don’t be one of the 55% of American adults without estate planning documents

Dying without a will almost guarantees that the manner in which your estate is distributed will not reflect your actual wishes. Having a will, on the other hand, allows you to exercise control of the many personal decisions Virginia default provisions cannot address. More than 55 percent of American adults don’t currently have a will or an estate plan of any kind.  Take the time to meet with an experienced Virginia estate attorney who can help you decide what type of estate plan will best suit your needs.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and Virginia Beach. 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 and estate planning, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

What Does “Best Interest of the Child” Mean?

Virginia courts use the best interests of the child standard to determine custody and visitation of minor children. This means judges and mediators consider how parenting plans may affect children, and try to make decisions and orders that ensure the child’s life will change as little as possible during and after the divorce. The ultimate goal is to ensure that children will have a meaningful relationship with both parents, if possible. The concept of the best interest of the child can be difficult to understand.  So let’s start with a good definition.  In the context of child custody cases, focusing on the child’s “best interests” means that all custody and visitation discussions and decisions are made with the ultimate goal of promoting and encouraging the child’s happiness, security, mental health, and emotional development into adulthood. At its core, the best interest of a child should be determined by focusing on meeting the child’s, not the parents’, fundamental needs, as well as encouraging opportunities for his or her development. Of course, the needs and best interests of each child are unique. The child’s health, education, family, interests, and wishes should be taken into consideration.

As defined in the context of family law

It is much easier to pin down the meaning of the best interests of a child in regards to family law. This concept most often comes into play when planning living arrangements for a child during a divorce or child custody case. The objective of such arrangements should be to not only meet the physical and emotional needs of the child, but also to support the child’s sense of security and well-being. As you might imagine, this often means providing the child with opportunities to develop relationships with both of his or her parents and as many immediate relatives as possible (grandparents, aunts, uncles, cousins, etc.) However, the court will also consider if maintaining a relationship with either parent has the potential to have a negative impact on the child’s development.

How the Virginia courts determines the best interest of a child

Virginia gives primary consideration to the best interest of the child when planning living arrangements. The following factors are of particular importance:
  • The safety, security, and health of the child in the home of either parent
  • The current caregiver of the child and the amount of time the child has lived with him or her
  • Any possible negative effects on the child’s development and well-being if removed from their current residence
  • The child’s level of attachment to parents, siblings and other family members
Keep in mind that every judge will give different levels of consideration to factors regarding the best interest of a child. The list we reference below is not a complete one but rather a set of guidelines.
  • The health of both parents (physical, mental, and emotional)
  • The religion and culture of the family
  • The child’s age and level of development
  • Any unique physical, emotional, mental or other special needs of the child
  • The child’s current living situation
  • Proximity of immediate family members and extended family members
  • Parental discipline methods
  • History of abuse or violence
  • History of abandonment
  • Any drug or alcohol addictions on the part of either parent
  • The child’s wishes (this may be dependent on his or her age)
  • Home environment
  • The current residence of siblings
  • Any need on the part of the child to adjust to a new school, community, or living arrangement
  • The financial resources of each parent
Remember, the Virginia court system prefers to keep both parents involved in the child’s life whenever possible. Parental involvement is generally only limited or denied when one parent has been determined to be a threat to the child’s safety and well-being. As mentioned above, there is a high level of subjectivity in determining the best interest of a child. If you’re involved in a child custody case, it’s extremely important to work with an experienced and knowledgeable Virginia child custody attorney. The results of your child custody case may be largely dependent on the skill of your legal team. The well-being of your child is certainly not a matter to be left up to chance.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm based in Reston and Virginia Beach.  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 custody and visitation, contact our office today at 703.995.9900 or visit our website: www.MeloneLawPC.com.

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