The Flinchum File
Thoughtful Economic Analysis and Existential Opinions

Quarantine Chore #2

03/17/2020

For those retired workers and for those newly stay-at-home workers — that insist on watching their portfolio shrink daily — let’s talk about something you will soon need . . . a Will.

A Will is a legal document that specifies what happens to a person’s assets upon death.  Like a court-appointed lawyer, if you need a Will and don’t have one at your death, your state of residence will label you “intestate” and then dictate what happens to your assets.  (For Virginia, see https://law.lis.virginia.gov/vacode/title64.2/chapter2/section64.2-200/)   This is often called “a poor man’s Will.”  I have never met a person that was happy with a state-provided distribution plan and strongly recommend you make your own decisions.  Don’t surrender your assets and your family to the probate court!

One decision is who will be the executor or executrix of your estate.  Upon your death, your executor will take the original copy of your Will to the Clerk of the Probate Court, who will issue a Certificate of Qualification authorizing the executor to dispose of your assets.  This way, you can control your assets “from the grave” through your executor.

For most people, I consider a Will strictly as a back-up.  After my mother died March 30, 2014, I never took her Will out of her safe deposit box.  Because we had carefully made sure that all her assets were jointly titled with whomever she wished, there were no assets that needed approval of the probate court.  Her Will was never used.  Many people can also benefit from a trust, which also keeps assets out of the probate court, and we will discuss trusts in a later blog.

By the way, while a trust can have multiple original documents, there can only be one original copy of the Will, which the probate court must have.  Do not put the original copy of your Will in your safe deposit box, unless that box is jointly titled with somebody else.  Otherwise, you have a “chicken or egg” problem – the bank won’t let anybody — who is not on the title — into your safe deposit box to get the original copy of your Will without a Certificate of Qualification, but you cannot get that Certificate without the original copy of the Will.

A really bad idea is writing your own holographic Will.  This is an entirely handwritten document, signed in presence of two witnesses and preferably in front of a Notary, that will be accepted by the probate court in many states, including Virginia.  You are strongly advised to hire a lawyer to write your individualized Will, as part of a comprehensive estate plan by your financial planner.

If you are determined to get this off your To-Do list during your quarantine period and meetings are difficult to arrange, you can always go online to websites like www.legalzoom.com  That is not a perfect solution, but it is cheap and better than writing your own holographic Will.

While you’re sitting at home thinking about this, your lawyer is also probably sitting at home — waiting for you to call . . .

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