Virginia Probate: What to Do if You Are Left Out of a Will
Find out more about what you are entitled to even if you are left out of your family member's will.
Sometimes people are left out of their family's will. This can create distrust and animosity among family members. Sometimes people are accidentally left out of the will. Other times, the family member intentionally decided to disinherit them.
Either way, a disinherited family member may still be entitled to some compensation from the depending on when the will was drafted and whether the action was intentional or unintentional.
So who is entitled to receive compensation even if they are left out of the will, and how much are they entitled to?
Children Born After the Will's Creation
The first category of individuals that may be left out of a will are omitted children. This category is dedicated to children who are born after the will is executed. If the will does not explicitly waive the interests of children born after the will is created, then those children are entitled to a share of the estate’s assets.
An omitted child may be entitled to two different types of compensation depending on how the will is written. If there are other children who receive assets under the will, then the omitted child will likely be entitled to at least the same amount of compensation as those other children. If no child receives compensation under the will, then they are entitled to an equal share of the assets depending on how much is left after other claims.
Marriages After the Will is Written
It is not uncommon for a person who drafted a will to either marry or remarry after their will is created. If they do not update their will to reflect their new marriage, then there may be some problems. A new spouse, or an "omitted spouse," is entitled to receive compensation from an estate even if their name does not appear in the will. An omitted spouse is entitled to receive the same amount of money as if there had been no will.
Spouses Intentionally Left Out of a Will
Even if a person does not remarry after creating a will, and intentionally leaves nothing to their spouse, the spouse is entitled to compensation from the estate. This is known as an “elective share.” An elective share may be either a third or a half of an estate, depending on whether there are any surviving children or omitted children.
Why You Need a Lawyer
If your relative left you out of their will, either intentionally or unintentionally, it is important to have a lawyer walk you through your rights and how to request compensation from an estate. There are many different calculations that come into play depending on the type of heir you are, and when the will was written. If you have been left out of a will, seek out legal counsel as soon as possible.
Virginia Estate Planning: Types of Trusts
Find out more about the various types of trusts in the Commonwealth of Virginia, and learn a little about which types of trusts may be best for you.
If you have significant assets such as real estate or liquid capital, you may want to consider the estate planning tool know as a trust. A trust is an arrangement which you can create which allows you to transfer title of your assets and to plan for certain tax consequences of allowing those assets to go through probate. A trust is also an excellent way of avoiding conflict between your heirs over the meaning of a will, or how an estate will be settled by your executor.
However, there are many different types of trusts in Virginia, and it is important that you have a basic familiarity of these trust types to help you understand your lawyer’s advice.
Revocable v. Irrevocable Trust
A living trust is a type of trust that you create during your lifetime. There are two major types of living trusts; revocable and irrevocable trusts. With either type of trust, your assets are transferred into the ownership of the trust. Technically, you no longer own the property that is put in the trust.
The difference between the two trust types boils down to how much control you maintain over the trust after it is created. A revocable trust allows you to make changes to the trust during your lifetime. For example, if you decide you want to dismantle the trust.
In contrast, an irrevocable trust cannot be dismantled, and the property remains in the trust during your lifetime. There are several benefits to an irrevocable trust depending on the value of your estate and the likelihood that your heirs will contest how your estate is handled.
Subtypes of Trusts
These two major categories of trusts can be further split into various categories depending on why you create the trust, the type of property you put into the trust, and how much power you want to give to your heirs in the trust. Common examples of subtypes of trusts include;
Generation skipping trusts, which allow you to pass property from yourself to your grandchildren.
Land trusts, which allow land to be managed by your family.
Medicaid planning trusts, which allow you to put your property into a trust to allow you to qualify for medicaid if you have too many assets.
Special needs trusts, if you have a family member with mental health needs or other disabilities.
Spendthrift trusts, which allow you to limit the amount of money your heirs receive over a period of time if you are afraid they will spend all the money too quickly.
Charitable trusts, which allow you to leave money to a charitable organization of your choice.
QTIP, which is a type of trust that allows you to leave tax-incentivized assets to your spouse.
Why you need an estate planning lawyer.
As you can see, trusts are a very complicated area of law which require a significant amount of thought. There are many different types of trusts in Virginia, and the one that is right for you depends largely on why you want to create the trust and what the trust is to be used for. A lawyer can help you navigate these various types of trusts to determine which is best for you.