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Should Burial Arrangements Be Part of My Will?

In Virginia, each person has the right to dictate the disposition of his or her remains, whether by cremation, interment, entombment, memorialization, or some combination thereof. Though arranging your own funeral might seem strange, it is a good way to forestall disagreements about how your body is to be treated. At first glance, it may seem like a good idea to incorporate this component of estate planning in your will. However, the executor you name will not be able to act until he or she has qualified — which might not happen until weeks after your death — so your will is not a good place for you to dictate your funeral arrangement. In addition, your will probably won’t be looked at until after burial has already occurred.

As an alternative, Virginia law allows you or your lawyer to draft binding burial designation instructions.

What If I Don’t Plan My Wishes and Later Become Incapacitated?

If an adult becomes incapable of making responsible decisions due to a mental disability, the court may appoint a substitute decision maker, called the guardian and conservator, to make legal, financial, and health care decisions for that person. A conservator may be appointed to handle only finances. After a petition has been filed with the court to appoint a guardian or conservator, but before the hearing takes place, the judge appoints a guardian ad litem. The guardian ad litem is an attorney whose role is to protect the rights of the respondent. In most cases, these proceedings can be avoided with proper planning.

How Can I Protect My Loved One Financially?

A special needs trust is a type of trust that is created to ensure that physically or mentally disabled beneficiaries – both children and the elderly – can receive inheritance without compromising their government benefits such as Social Security Income (SSI) and Medicaid. For some clients we establish a payback trust, which protects an individual’s eligibility for certain government benefits and still allows him or her to contribute to the trust.

Who Should Manage a Special Needs Trust?

An SNT must have a trustee who will properly manage the trust assets. The choice of the trustee is a critically important decision. In most instances, a family member will be designated as the trustee.

My Spouse Recently Passed Away. What Now?

While children have no legal right to an inheritance, in the absence of a pre or post nuptial agreement, a spouse has rights whether or not there is a will. Generally speaking, the provisions of a will control how the deceased spouse’s estate will be administered. However, Virginia law protects disinherited surviving spouses by giving them the option to take an “elective share” of an “augmented estate.”

How Are Non-monetary Assets Transferred Upon Death?

Those of us who take time to plan our estates generally want our offspring to enjoy each other well after we have passed, but nothing breaks up a family faster than leaving a legacy of hate. Deciding whether to leave grandchildren or charities a monetary bequest, and what percentage to leave each child, is relatively simple. More difficult issues arise concerning a family business, land that has been passed down through generations, or a vacation home.

What is considered equitable division of property in a Virginia-based divorce?

Dividing property in a Virginia divorce is done equitably; our lawyers will help you receive your fair share and fight for you to receive the property most valuable to you. However, equitable distribution does not necessarily mean that property will be divided 50/50. Rather, property is divided based on what is fair under the circumstances.

How is child custody decided in Virginia?

There is no one factor that determines custody in the Commonwealth. Living conditions, schools, and geography all come into play. In determining a child custody and visitation plan in divorce proceedings, Virginia family law judges consider the following:

  • Age of child
  • The child’s needs
  • Relationship between the parent and child
  • Relationship between the parents
  • The child’s preferences (under certain circumstances)

Once custody is granted, are changes ever made?

If you experience a substantial change in circumstances, it might be necessary to petition the court for a modification to your child support, child custody or alimony order. Qualifying changes could include losing your job, remarrying, needing to move out of state or a change to your health status.