WHY SHOULD I HAVE A WILL? DURABLE POWER OF ATTORNEY? ADVANCE MEDICAL DIRECTIVE?

If you die without a will in Virginia the Code of Virginia provides how your estate will be will be disbursed. If you are married all of your estate passes to your spouse unless you have children of a prior marriage in which event two thirds of your estate passes to those children. If you have no spouse your estate passes to your parents and if you have no parents it is divided equally between your brothers and sisters.

If you die without a spouse or die simultaneously with your spouse and are survived by your children your estate will be divided equally among your children. However, any minor children must have a guardian appointed by the court to control their inherited assets until each reaches the age of 18 years. The custodian will be picked by the court and is usually a young lawyer without much of a practice.

As you will note, the state prescribed plan of inheritance does provide you with a plan to distribute your assets upon death. However, this statutory plan of distribution may or not be in effect at the time of your death as the legislature can change it at any session. If fact, it has been changed in several ways during the time that I have practiced law. The real problem with relying on the state statute is that you lose control of how you want your estate to be distributed and who is to handle the affairs of the estate. If you are survived by your children you are leaving their custody and property in the control of strangers and allowing the children to claim their inheritance at the age of 18, which for most children is before they have the maturity and knowledge to handle a substantial sums of money or assets.

Executing a valid will allows you to distribute your assets upon your death in the manner that you choose. You can pick your executor, provide a competent trustee to handle your child's inherited assets until the child reaches a responsible age and appoint a trusted person to act as your child's physical guardian. What is important is that you can make these decisions and not have them made by unknown code provisions or a stranger in the court house.

Although having a will in imperative if you have minor children it is also advantageous if you don't have children. It will allow you to make specific gifts and provide for your estate to pass to whomever and however you choose.

In addition to the will, you should have a durable power of attorney that will provide for another person to act for you if you become incompetent. Your bills need to be paid, your property maintained, your assets properly deployed and medical decisions have to be made even if you not able to do so. A durable power of attorney is a necessity if you own real estate and a minor may inherit part or all it. When a minor owns real estate, it cannot be mortgaged or sold without an expensive court proceeding which is also may takes months to accomplish.