Month: September 2018

DIY Estate Planning…Beware of Unintended Results

It sounds easy and promises “legal” results.  It’s less expensive than working with an attorney.  But estate planning is a serious process and if done incorrectly may have unexpected and expensive results.  Let’s look at five reasons why you should give those online forms or that estate planning kit a pass and consult a Virginia attorney who specializes in estate planning.

One size fits all solution

Most DIY solutions don’t contain many options.  It’s a fill-in-the-blank exercise and doesn’t address your specific or unique estate planning needs.  Your life doesn’t necessarily fit neatly in a box, so why would you expect your estate to?  The needs of a single parent are much different from the needs of a large blended family, or even an older couple with grown children and grandchildren.  One size doesn’t fit all… it usually fits no one.

It’s only as good as the person filling in the information

An estate planning attorney has a legal education and continuing education courses, as well as years of experience working with different kinds of clients with many different needs and wishes.  An online question and answer form can’t answer a client’s questions or impart legal information or advice.  It is not individualized and treats your needs and wishes exactly the same as everyone else who uses the program.   Obviously, this is no substitute for the expertise of a knowledgeable attorney who will ask the right questions and create an estate plan for your unique situation.  Remember, the unintended mistakes made today, will likely impact your children and grandchildren in the future.

Creating a comprehensive estate plan

An estate plan is not just a will.  A properly created estate plan not only specifies what happens to your assets when you die, it also plans for what happens if you become incapacitated and can no longer take care of yourself or your finances.  It should include a power of attorney and an advance medical directive that appoints someone to act on your behalf if/when you can’t act for yourself.  It may also include a trust or trusts to pass assets while avoiding probate or to take care of a person with special needs. An estate plan will also identify and address contingencies.  What should happen if a child predeceases you or you have a child after your will is drafted?  How should your assets be divided if you divorce or remarry?  A simple will may be a start, but it is not an estate plan.  A DIY solution may not cover these items and leave you with an incomplete plan that does not carry out your final wishes.

You don’t know what you don’t know!

Estate planning is rarely black and white.  There are many gray areas that are important. A DIY program may not take some of these into account.  If you’re “filling in the blanks,” or even skipping a question or part of the form you don’t feel is relevant, you may not know what you’re missing.  Even mistakes in legal language can be costly.  Estate law is governed by the state where the person resides when he/she dies, and individual state laws vary greatly on estate issues.  The Commonwealth of Virginia has very specific requirements on how to execute estate planning documents, including who must witness these documents and rules surrounding a self-proving affidavit.  A small oversight now could cause huge, and often expensive problems for your loved ones later.  Failure to follow statutory formalities for execution may invalidate the entire will.

Probate or non-probate assets

Some assets pass to your loved one through your will or trust, while other assets pass by law through specific beneficiary designations.  Items like savings bonds, certificates of deposits (CDs), life insurance, retirement accounts, and certain types of bank accounts can be designated to automatically pay at death.  A knowledgeable estate planning attorney will review all your assets and advise you on how to pass each most easily and inexpensively to the beneficiary.  Properly drafted estate planning documents take both types of assets into consideration to ensure that your estate plan follows your wishes. Drafting your own estate planning documents through a do-it-yourself program,may be a risky endeavor.  Though certainly less expensive, a DIY solution takes the most important element out of the process: the knowledge and advice of an experienced estate planning attorney with specialized education and legal training.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and 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 estate planning, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

Can I Get an Annulment in Virginia?

The simple answer is yes, but in very limited situations.  In the Commonwealth of Virginia, marriage is considered a contract between two people, and with it come obligations and certain legal rights.  Unlike a divorce, which is the dissolution of a valid marriage, an annulment is the end of an invalid marriage.  In other words, when an annulment is granted, it is as if the marriage never existed.  This rarely applies to most marriages.  The court only grants an annulment when there is a legal reason why the marriage shouldn’t have existed at all, which leaves divorce as the only legal means to end most marriages.

Grounds for an annulment

Under Virginia law, a spouse needs a legal ground to annul the marriage.  The couple cannot have the marriage annulled if they have been married for at least 2 years.  The following are the specific legal grounds for an annulment.
  • The marriage was not properly solemnized per the laws of the Commonwealth of Virginia.
  • One spouse was a bigamist and already married at the time of the marriage, and that marriage had/has not been dissolved.
  • One spouse was impotent at the time of the marriage and unable to engage in sexual relations.
  • One spouse was incompetent and wasn’t mentally able to understand and consent to marriage.
  • The spouses were related by blood and were closer than first cousins.
  • The wife was pregnant at the time of the marriage by someone other than her husband.
  • The husband fathered a child with a woman other than his wife within 10 months of the marriage.
  • One spouse was under the legal age to be married in Virginia. The legal age for marriage in Virginia is 18.  But marriage is legal at 16 with the consent of a parent or guardian or if the girl is pregnant.  A girl 14 or older may marry to prevent a statutory rape conviction.
  • One spouse committed fraud and the marriage took place because of deception. Grounds for fraud include lying about venereal disease, lying about religious beliefs, and hiding a pregnancy by another person.  Lying about your age, wealth, health conditions, and prior marriages, though fraud, are not considered to be sufficient grounds for annulment.
  • One spouse only entered into marriage because of duress, force, or fear of serious harm.
  • One spouse was a convicted felon.
  • One spouse was a prostitute without the knowledge of the other spouse.
  • The marriage was a sham. The spouses married for reasons other than the normal purposes of marriage, such as to gain immigration status.
If one or more of the grounds for annulment is not met, then the marriage must end through divorce proceedings.  Even if one party thinks they have grounds for an annulment, there is no guarantee that a judge will agree and grant one.  It is best to consult with a family law attorney to understand the grounds, process, and if this is the best way for you to proceed given your specific situation.

The difference between divorce and annulment

There are several differences and implications to annulling your marriage versus a divorce.  Unlike a divorce, the judge has no authority to make decisions about the division of marital property, assets, debts, or to order spousal support.  But, the court still has jurisdiction over child custody, visitation, and support.  Children from annulled marriages are considered legitimate, and like in a divorce, must be financially supported by both their parents. Even in the 21st century, when divorce no longer carries the stigma it once did, for some, an annulment is preferable for religious or other personal reasons.  In some cases, a person files for an annulment for financial reasons.  Unlike a divorce, if the marriage was never valid, the judge can’t make decisions about property division or spousal support.

About Melone Law, P.C.

Melone Law, P.C. is a general practice law firm and serves Virginia Beach and 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 annulment and divorce, contact our office today at 703.995.9900 in Northern Virginia or 757.296.0580 in Virginia Beach, or visit our website: www.MeloneLawPC.com.

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