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Estate Planning - What Is It?

More than just a will, you need a plan.

Estate planning is simply the process of providing for how your assets and possessions pass to others upon your death. When many people think of estate planning, they think of executing a will. However a will is just one of the tools available in the estate planning process. An individual estate plan can consist of one or more of the following common components.

Will – A will transfers probate property upon the death of the testator (person who executed the will). Probate property is property that does not transfer via other means. Non-probate property transfers outside of a will. It can include: retirement accounts that transfer pursuant to a beneficiary designation; life insurance proceeds; or property titled jointly with another person with right of survivorship. For a will to be valid, it must be executed with particular formalities. Note, however that there is no requirement that a person have a will. Passing without a will is referred to as dying intestate. When this happens, the rules of intestate succession apply.

Power of Attorney –  A Power of Attorney grants someone the authority to handle particular affairs, such as financial transactions or medical decisions, on your behalf. Generally the idea is to give someone Power of Attorney when you are incapacitated and unable to handle your own affairs. A power of attorney may be general power of attorney or limited to specific transaction(s).

Trust – A trust is basically a legal entity that can own and hold property. I often tell clients that it can be helpful to think of it almost as a corporation. Just like a corporation can own property, hold bank accounts, etc. – so can a trust. The purpose of a trust is to hold property for the benefit of specific persons, called beneficiaries. The property of the trust is managed by the trustee for the benefit of the beneficiaries. Often a particular type of trust, called a Revocable Living Trust can be used in lieu of a will (or used in conjunction with a pour over will) to transfer and manage property after one’s death.

Guardianship & Conservatorship – In Virginia, guardianship and conservatorship are the two processes that the law establishes for managing the affairs of a person that is incapacitated or unable to manage their own affairs. A guardianship can be established to manage healthcare and other personal day-to-day decisions for the incapacitated person. A conservatorship is established to manage the incapacitated person’s financial affairs. The legal process to establish a conservatorship and guardianship through the courts can be a cumbersome and lengthy process. Often it is the goal of estate planning to establish alternatives to this process (such as establishment of a power of attorney or trust) in order to avoid the formal conservator and guardianship process through the courts.

Medicaid planning – Medicaid is a state and federal program that is designed to provide medical care to individuals that meet particular financial and other guidelines. For many, Medicaid provides long-term senior care. However there are financial pre-requisites to qualifying for Medicaid coverage. In a nutshell, Medicaid planning is the process of organizing your estate in such a way as to maximize eligibility for Medicaid benefits.


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