Estate Planning Lawyer
Estate planning is about more than writing a will. It is the process of making legal arrangements now so that your family, your assets, and your wishes are protected if you become incapacitated or after you pass away. Without a plan in place, Virginia law determines who receives your property, who makes medical decisions on your behalf, and who cares for your children.
As a Stafford, Virginia estate planning attorney, Miles Franklin helps individuals and families create plans tailored to their specific circumstances, whether that means a straightforward will or a more comprehensive trust-based plan.
Key Estate Planning Documents
A complete estate plan typically includes several documents that work together. The right combination depends on your assets, your family situation, and your goals.
Last Will and Testament
A will is the foundation of most estate plans. It specifies how your assets will be distributed after your death, names an executor to manage the process, and allows you to appoint a guardian for minor children. Under Virginia Code § 64.2-403, a valid will must be in writing, signed by the testator, and attested by at least two competent witnesses.
If you die without a will (intestate), Virginia’s intestacy laws determine who inherits your property, which may not align with your wishes. Having a valid, up-to-date will ensures your intentions are honored. Learn about the process for challenging a will and how to prevent disputes.
Trusts
A trust allows you to transfer assets to a trustee who manages them for the benefit of your chosen beneficiaries. Trusts offer several advantages over a will alone, including avoiding probate, maintaining privacy, and providing ongoing management of assets for beneficiaries who are minors or who may not be ready to manage an inheritance.
The two primary types are:
- Revocable trusts (living trusts): You maintain control during your lifetime and can modify or revoke the trust at any time. Assets in a revocable trust pass directly to beneficiaries without going through probate. Learn how a living trust can protect your family’s future.
- Irrevocable trusts: Once established, these generally cannot be changed. They offer stronger asset protection and potential tax advantages compared to revocable trusts.
Choosing between a will and a trust is one of the most common estate planning decisions. Read more about how to decide between a will and a trust in Virginia.
Power of Attorney
A power of attorney designates someone you trust (your “agent”) to manage your financial and legal affairs if you become unable to do so yourself. Under Virginia Code § 64.2-1602, a power of attorney must be signed by the principal and acknowledged before a notary public.
Without a power of attorney, your family may need to petition the court for a guardianship or conservatorship to handle your affairs, which is a time-consuming and costly process. Understanding how a power of attorney can be challenged or terminated is also an important consideration.
Advance Medical Directive
An advance medical directive (sometimes called a living will) allows you to specify your wishes regarding medical treatment if you are unable to communicate them yourself. This document can address decisions about life-sustaining treatment, pain management, and organ donation. It also allows you to name a healthcare agent to make medical decisions on your behalf. Learn about the differences between a living will and an advance directive.
The Probate Process in Virginia
When someone passes away, their estate typically goes through probate, the court-supervised process of validating the will, paying debts, and distributing assets. In Virginia, probate is handled through the circuit court in the county where the deceased resided.
Probate can be straightforward or complex depending on the size and nature of the estate. Virginia offers a simplified process for small estates valued at $50,000 or less. For larger estates, the process involves appointing an executor or administrator, filing an inventory of assets, paying creditors in the order of priority required by law, and making final distributions to beneficiaries.
The Commissioner of Accounts oversees the executor’s work to ensure the estate is administered properly. Proper estate planning, particularly the use of trusts and beneficiary designations, can help many assets bypass probate entirely.
Estate Tax Planning
While Virginia does not impose its own estate tax, federal estate taxes may apply to larger estates. For 2025, the federal estate tax exemption is $13.99 million per individual. Estates below this threshold are not subject to federal estate tax. However, this exemption amount is scheduled to decrease significantly after 2025 unless Congress acts to extend it.
Even if your estate falls below the federal threshold, thoughtful planning can help minimize the tax burden on your heirs and ensure more of your assets reach the people you intend.
Estate Planning for Veterans
Veterans face unique estate planning considerations, including how VA benefits interact with trusts and how service-connected disability compensation affects an estate. Certain types of trusts can be structured to preserve VA benefit eligibility while still protecting assets for your family. Miles Franklin’s background as a Virginia Army National Guard paralegal gives him firsthand understanding of these issues. Learn more about estate planning considerations for veterans in Virginia.
Guardianships and Conservatorships
If a family member becomes incapacitated without having a power of attorney or advance directive in place, the court may need to appoint a guardian (for personal and medical decisions) or a conservator (for financial decisions). This process requires a court petition, a hearing, and ongoing oversight by the Commissioner of Accounts.
Guardians and conservators have significant fiduciary responsibilities. Understanding how bond and surety requirements work and being aware of common fiduciary breaches and how to report them are important for anyone serving in these roles. If circumstances change, a guardianship or conservatorship can be transferred when a person moves to another state.
Proper estate planning, particularly having a durable power of attorney and advance directive, can often eliminate the need for a court-appointed guardian or conservator entirely.
What Documents Are Essential for a Complete Estate Plan?
At minimum, most adults in Virginia should have four documents in place: a will, a durable power of attorney, an advance medical directive, and a review of beneficiary designations on retirement accounts, life insurance policies, and other financial accounts. For a more detailed breakdown, read about the documents essential for a complete estate plan.
When to Update Your Estate Plan
An estate plan is not something you create once and forget. Major life events should prompt a review, including:
- Marriage or divorce
- Birth or adoption of a child
- Death of a spouse, beneficiary, or named executor
- Significant changes in assets or financial situation
- Moving to or from Virginia
- Changes in tax laws
Reviewing your estate plan every three to five years, even without a major life change, helps ensure it still reflects your wishes and complies with current Virginia law.
Frequently Asked Questions
How much does estate planning cost in Virginia?
The cost depends on the complexity of your situation. A basic will is typically the most affordable option. More comprehensive plans that include trusts, powers of attorney, and advance directives involve additional preparation. During your consultation, Miles Franklin can provide an estimate based on your specific needs.
What is the difference between a will and a trust?
A will takes effect after your death and must go through probate. A trust can take effect during your lifetime, avoids probate, and provides ongoing management of assets. Many estate plans include both. Read a detailed comparison of wills vs. trusts in Virginia.
Do I need an estate plan if I do not have many assets?
Yes. Estate planning is not only about distributing wealth. It also addresses who makes medical decisions for you if you are incapacitated, who cares for your minor children, and how to avoid unnecessary legal proceedings for your family. Even a basic plan with a will, power of attorney, and advance directive provides meaningful protection.
What happens if I die without a will in Virginia?
If you die intestate (without a will), Virginia’s intestacy statutes under Virginia Code § 64.2-200 determine who inherits your property. Generally, your estate passes to your surviving spouse and children. If you have no spouse or children, it passes to parents, siblings, or more distant relatives. The court also appoints an administrator to manage your estate, which may not be the person you would have chosen.
Schedule a Free Consultation
If you or someone you know is ready to protect your family with a will, trust, or estate plan in Virginia, schedule a free consultation with Miles Franklin to discuss your case and learn about your options. You can also call (276) 773-6102 to speak with the office directly.