The Perils of Dying With No Estate Plan
Published: Fri, 05/02/14
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Ask the Expert: Your Elder Law Questions Answered by Evan H. Farr, CELA |
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The Perils of Dying With No Estate Plan If you cannot view the image below, please read the article on our blog.
 Q.
My lifelong friend, Bruce, is in his 70's and has never been married
and has no children. His parents and his sister and brother have
predeceased him, and he has no nieces or nephews. On his father's side,
he has a cousin, Steve, who he has always been very close to - they grew
up together and are more like brothers than cousins. On his mother's
side he has twelve second cousins, most of whom he never met because his
mother had a "falling-out" with that part of the family when before
Bruce was even born. Bruce owns a home worth $500,000 in Northern
Virginia and has some savings and investments. However, Bruce is
stubborn and every time I suggest he should do Estate planning, he says
he doesn't need to. Bruce (who went to one year of law school) says
he's certain it will automatically all go to his cousin Steve (which is
what he wants) since Steve is a first cousin, and that nothing will go
to the second cousins on his mom's side because they're second cousins.
Because of this, Steve says he doesn't need to do any Estate Planning.
He's so sure about this that he was even willing to bet me money that he
was right. I'm not a better, plus I have no idea whether he's correct
of not, but I did agree to a "gentleman's bet" just so we can find out
the answer. Can you please help us settle our gentleman's bet?
A. Despite his one year of law school, Bruce is wrong in assuming that everything will to go to Steve. On the contrary, if Bruce dies without having done Estate Planning, then half of Bruce's estate will go to Steve and half will be divided among his 12 second cousins on his mother's side - not the result that Bruce wants. Keep reading to understand the details of why this would happen.
When a person dies intestate (without a Will or Living Trust) in Virginia, and has no surviving spouse, children, parents, siblings, or descendants of siblings, the decedent's estate is divided into two equal parts, called "moieties." One moiety goes to the decedent's father's side and one moiety goes to the decedent's mother's side. The recent Virginia case of Sheppard v. Junes, 2014 Va. Lexis 56, dealt with very issue. In the case, John Sheppard died without a will. Like Bruce, he never married and had no children. His sister and parents predeceased him. On his father's side he was survived by a half-uncle (i.e., his father's half-brother); on his mother's side he was survived by fourteen second cousins. The administrator of the estate sought advice from a circuit court to determine whether (i) John's half-uncle was entitled to only one-quarter of the estate because half-bloods under Virginia law typically take half as much as whole-bloods or (ii) John's half-uncle was entitled to one-half of the estate, because he was the only heir on the paternal side. The circuit court held that John's half-uncle was only entitled to receive one-quarter of the estate. The Supreme Court reversed and held that John's uncle was entitled to one-half of the estate because he was the only heir on the paternal side. The Supreme Court based its decision on Section 64.2-200 of the Code of Virginia, stating that if a decedent has no surviving spouse, children, parents, siblings, or descendants of siblings, the estate is divided into two moieties. Each moiety is entirely separate from the other, and keeps to its own side, as long as there is at least one person to take the moiety. Under the statute, John's uncle, even though he was only a half-uncle, was entitled to receive the entire paternal moiety, and the second cousins were entitled to the maternal moiety.
The court also reviewed section 64.2-202 of the Code of Virginia, which describes how to distribute the decedent's estate. The court noted that the statute clearly instructs that the division among the heirs is applied separately to the paternal and to the maternal moieties created under section 64.2-200. Because John's uncle was the only relative for the paternal side, he was entitled to take the entire paternal moiety, and because the maternal moiety and the paternal moiety were separate, it did not matter that John's uncle was a half-uncle and not a full uncle. As you can probably imagine, the court proceedings, time, publicity, and costs involved, were a nightmare for these families, that could have been easily avoided if Mr. Sheppard had simply done some basic Estate Planning.
Many people think that Estate Plans are for someone else -- not them. They may rationalize that they are too young or don't have enough money to reap the tax benefits of a plan, or don't have any family to leave their estate to. Or, like Bruce, they may incorrectly think that the law will do what they want automatically. However, Estate Planning is for everyone, regardless of age, marital status, or net worth. Without proper Estate Planning and depending on how assets are titled, half of your friend Bruce's assets could go to family who he has never met or hasn't seen in decades, rather than to the one person who he wants to give it to. To avoid all this, it is highly recommended that your friend and others in his situation meet with a Certified Elder Law Attorney to explore their estate planning options to avoid unwanted consequences when they pass. Estate planning strategies such as those employed by the Fairfax and Fredericksburg Estate Planning Firm of Evan H. Farr, P.C. are extremely valuable techniques for everyone -- single or married - and of whatever sexual orientation. Most people work their entire lives to accumulate what they own. Everyone needs the peace of mind that comes with making sure that their legal and financial affairs are taken care of if they become incapacitated, that decisions about health care are carried out the way they'd like even if they're not able to make them, and that their loved ones are taken care of when that time eventually comes. To begin your Estate Planning or to update your documents, please call 703-691-1888 in Fairfax or 540-479-1435 in Fredericksburg to make an appointment for an introductory consultation.  Homebound Seniors Connect with Loved Ones
 Dear Commander Bun Bun, My 84-year-old grandmother is homebound, and would like to connect with her great grandchildren who are scattered throughout the country, and take classes. She doesn't like Skype. Since you are the technological pet in the office, what are some other ways for her to chat live with others and take classes over the internet? Thanks for your help! Richie N. Goutt ----- Dear Richie, Technology developed by partners Microsoft, It's Not 2 Late (IN2L), and Selfhelp, is helping seniors stay connected with loved ones, take classes, and more. The Virtual Senior Center makes it possible for homebound seniors to take part in live chats with family and friends, participate in intriguing live classes, enjoy yoga, learn wellness tips, and more. The Virtual Senior Center program offers an easy-to-use touch screen design, created to simplify and streamline the way that participants use the service, and includes simplified access to live chat features, email, and games. It helps seniors age in place and remain integrated into the community by bringing that same senior center experience into the home. According to Lilliam Barrios-Paoli, commissioner of the New York City Department for the Aging, "If homebound seniors are no longer able to venture into the world as often or as freely as they would like, then we will bring the world to them." The Virtual Senior Center is popular in the home and has so far been placed in more than 800 nursing homes, assisted living communities, and adult day programs. Watch a video about the Virtual Senior Center. If your grandmother has not done Incapacity Planning, Estate Planning, or Long-Term Care Planning, or if she is nearing the need for long-term care or already receiving long-term care, please contact The Law Firm of Evan H. Farr, P.C. as soon as possible at our Virginia Elder Law Fairfax office at 703-691-1888 or at our Virginia Elder Law Fredericksburg office at 540-479-1435 to schedule your appointment for an introductory consultation About Commander Bun Bun Commander Bun Bun is a Holland Lop rabbit that lives at the Farr
Law Firm. Commander Bun Bun was the runt of the litter, and when she was a
baby, her mother accidentally bit off her tail and then stopped feeding her. She
is now a completely happy and healthy little bunny. Commander Bun Bun loves to
be held like a baby and to have her tummy rubbed. She enjoys all of the
attention (and, of course treats) she gets from staff and friendly clients at
the firm. We encourage you to visit us and meet her and our other extraordinary critters!
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