Robin (Rob) K. Kutz

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Wills & Trusts

Virginia Wills and Trust Attorneys

Newport News - Hampton - Poquoson - Yorktown - Williamsburg

Estate planning is a critical part of the financial planning process, and the foundation of every successful estate plan is a Last Will and Testament (“Will”) or a Will plus a Revocable Living Trust (“Living Trust”). These documents help insure that your assets, no matter how large or small, go where you want them to go when you pass on. Your Living Trust and/or durable general power of attorney, plus an advance medical directive (living will) also will help your loved ones provide for you and your dependants if you should become disabled and unable to care for yourself. Your estate plan should also help you minimize estate taxation, provide for minor children (or grandchildren) and other surviving family members such as your spouse and other dependents. No two estate plans are alike—each is as unique as YOUR family, your assets, and your goals. At Miller, Walsh & Kutz our goal is to help you reach those goals with a plan tailored to your particular situation.

WHAT IS A WILL AND HOW IS IT DIFFERENT THAN A LIVING WILL?

A Will is a writing in which you set out in writing how you wish all your personal assets (your “estate”) to be divided and who you wish to give those assets to after your death, once all of your debts, taxes, and the costs of administering your estate have been paid. If you die without having written a valid will (known as “dying intestate”), Virginia law determines who inherits your estate. Because you might not want to give your estate to your loved ones in the way Virginia law thinks you do, it is always better to lay out your desires in a Will. Why let the State decide for you?

A living will is really not a Will at all. More properly known as a Natural Death Act Declaration, this document states your preference with respect to end-of-life decisionmaking. It declares whether you would want your life to be prolonged artificially if you were in a terminal condition and near death or in a persistent coma from which your doctors do not believe you will recover (a “persistent vegetative state”). In a living will you tell your doctors and your loved ones whether you would or would not want your life artificially prolonged by machines, whether you would or would not want artificial nutrition and hydration if you were in a persistent vegetative state, and whether you would or would not want to be given medication in an amount sufficient to relieve your pain even if that might inadvertently hasten the moment of your death.

The living will is most often combined with a medical power of attorney—together known as an Advance Medical Directive—in which you name the person(s) you wish to be able to make medical decisions for you whenever you are unable to do so for yourself (not just in end-of-life circumstances). We at Miller, Walsh & Kutz firmly believe everyone over the age of eighteen ought to have an Advance Medical Directive.

WHAT IS A REVOCABLE LIVING TRUST?

A Revocable Living Trust is a written contract between the Trustmaker (also called a “Grantor” or “Settlor”) and his agent, known as a Trustee, which spells out how the Trustmaker wants his assets to be administered while he is alive and healthy, alive but disabled or otherwise incapacitated, and after his death. The Trustmaker usually appoints herself as Initial Trustee and then names successor Trustees to manage the trust upon her disability and after her death. The Trustmaker transfers assets into the trust when it is established and as needed after that and then manages those assets as Trustee for the Trustmaker’s benefit. The Trustmaker may amend or even revoke the trust at any time. Since the Trustmaker, Initial Trustee and Beneficiary are the same person, the trust’s income is taxed to the Trustmaker directly. Because the assets are titled in the name of the trust, however, upon the Trustmaker’s death the assets do not pass through his Will and so are not subject to administration under the supervision of the court.

As a result, Virginia’s probate tax is avoided, the assets in the trust do not become a matter of public knowledge, and the trust may be administered in less time than if they were subject to probate. While not everyone needs a trust-based (rather than will-based) estate plan, Miller, Walsh & Kutz recommends that everyone with significant (>$1 Million) assets, real estate located in more than one state (e.g., a home in Virginia and an Outer Banks vacation home), or a blended family situation strongly consider a trust-based estate plan.