Bushman Law Group wills pros

Testamentary Will facts:

#1. Wills speak at death - This means that a Will has aboslutely no power until the person who makes the Will is dead.

#2. Handwritten Wills - Are also called holographic wills. These Wills are problematic because the State of Virginia needs two disintersted individuals to prove the handwriting is the deceased person's hand writing. What's so hard about that? Disinterested means the person cannot inherit whether the Will is probabted or if the person will get something from intestacy. Why? As James Madison wrote in Federalist #51 " Man is no Angel," and if someone has a stake in the outcome then he is biased, and the state of Virginia does not want to even second guess one of its great citizens let alone someone from another state, and this problem is solved by this black and white rule. Accordingly, this person must not only have known the deceased, but more importantly, must recognize the deceased handwriting and testify in court. Lastly, trying to find two of these people and then get them to the court house.

#3. Fill in the blank Wills - These wills are very popular. Unfortunately, they encounter many problems. Many of these wills do not have a self-proving clause in the Will. This clause enables the Probate clerk to probate the Will without the testimony of the two witnesses. Is that a problem? Witnesses move, die, and become incapacitated to testify. Such circumstances make it hard to find even one witness in five years, let alone twenty. The other issue is that some of these wills are never witnessed and rely on the Handwritten Will method, which brings us not only back to Fact #2, bust also the will is read without reading any typed text: Only the handwritten parts are read, and, usually, this makes for incomplete sentences.

#4. Probate Tax - Current popular opinion is that a Will leads to unnecessary taxes. It is true that a probate tax is assessed on the assets of the estate, but these are rarely more than a few thousand and as little as a couple hundred. The biggest fee is associated with the Executor's Fee.

#5. Executor's Fee - Like the Probate Tax, the thought of money going to someone that is an Executor is another reason some promote the Trust as opposed to a Will. First, the executor does not have to receive his fee and can always reduce his fee. Further, most Wills name a loved one who is most likely an heir under the Will to serve as Executor, this is where the money is going. The Executor has no small job and must account to the commissioner of accounts and the heirs for the administration of the estate to be smooth. Furthermore, the executor becomes personally liable for his errors. In the end, there is the saying that "you get what you pay for."

#6. The Trust is Cheaper - Not Necessarily. A Trust does have some benefits but still has costs of its own. First, if the trust earns income, then the trust pays taxes on that income. Second, if the trust has a trustee, then the trustee has the right to take a fee for his services, just like an executor. The trustee fee may be smaller, but its a yearly fee. Its not unusual that after a few years the Trustee's fee is more than the Executor's Fee.

#7. Trusts and Wills can and should work together. A Will is a document everyone should have. Why? if you leave an asset outside of the trust upon death, then the Will can correct your mistake and put the asset in the trust. The question for most, is not whether they should have a Will or a Trust, but if they should have a Trust, in addition, to a Will?

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