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A New Tool for Preserving Wealth in Virginia

On July 1st of 2012, Governor McDonnell signed legislation to permit self-settled trusts in Virginia. Self-settled spendthrift trusts, often referred to as Domestic Asset Protection Trusts (DAPTs), are trusts in which the individual is both the grantor and the beneficiary of the trust. Virginia joins the likes of Alaska, Delaware, Utah, Nevada, Rhode Island, South Dakota, Tennessee, Wyoming, Oklahoma and Ohio as one of only 14 states now permitting these unique and highly desirable instruments.

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Using the Generation Skipping "Dynasty" Trust

Estate planners can now write a trust that contains special provisions for the continuation of the trust after the client’s death(s) for the benefit of their children or beneficiaries.  This is known as a Dynasty Trust or Exemption Trust.  A separate Exemption trust will be set up from the original trust and for each of the beneficiaries identified.  The Exemption Trust is designed to protect the assets in the Exemption trust from the creditors of the beneficiary, from estate and death taxes at the death of the beneficiary, from claims of spouses in the event of a divorce, and to insulate assets in the trusts from being deemed available resources in the event of the beneficiary’s disability in case he or she is otherwise eligible to receive public assistance such as Medicaid or supplemental social security income.

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Avoiding Probate

When a person dies owning property in Virginia, someone will need legal authority to take charge of the person’s property making sure that the individual’s bills are paid and distribute the property to his or her heirs or beneficiaries.  There are several techniques that people may use to provide authority for someone to take charge of their assets at their death. 

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Dodging the Dreadful D's: Debt, Divorce, Disability and Death Taxes

As legacy and estate planners, we are often asked “How do I protect the assets from death taxes, from the costs and inconvenience of probate? And how do I prevent my children from losing these assets after my death to divorce, disability or debts?” The best answer to these questions is to use a special type of Revocable Living Trust commonly called a “Dynasty Trust”.

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Beware: The Do-It-Yourself Estate Plan

For convenience and minimal cost, many folks use a joint account for estate planning purposes.  It is easy; its simple, and its dangerous-just put someone on your bank accounts to manage the account if you become disabled and at death.  This is a joint account with survivorship. 

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The New Durable Power of Attorney

In 2010, the Virginia General Assembly passed the Virginia Uniform Power of Attorney Act.  This was the first major overhaul of the law regarding the use of powers of attorney in Virginia since the Revolution.  Now, instead of relying on English common law, the law regarding how it be used and make-up of powers of attorney is now a statute.  There are several reasons why this was a new law was formed.  First, prior to the passage of the Act, there were as many types and forms of powers of attorney as there were lawyers drafting them.

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The New Virginia Super Trust

I have been writing trusts for the last 35 years to assist clients in protecting assets, avoiding probate and to protect beneficiary(s) from creditors, taxes, and other risk associated with transferring assets to the next generation.  In recent years, Virginia lawmakers have improved the environment for trusts.  Beginning in 2003, the Virginia General Assembly modified the English Rule Against Perpetuities permitting the use of “dynasty trusts” that can continue for multiple generations.  In 2006, Virginia passed the Virginia Trust Act codifying standard provisions for trusts to eliminate much of the need to involve the court in the proper interpretation and administration of trusts. 

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What's New in Estate Planning?

Much has happened over the last few years in the field of estate planning.  Most important was the recent decision by Congress on the last day of 2012 to extend the current estate tax exemption of $5M, which permits individuals to die owning assets of $5M or less without paying any Federal death tax.  It also allows people to make a gift up to $5M without paying any current gift tax.  Any gifts made (over the annual exclusion of $14,000 per year per gift) are deducted from your lifetime estate tax exemption.         

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Your Living Will

Most of us are familiar with the concept of a living will, now referred to as an advanced medical directive (AMD).  This is a document where you authorize someone to make medical decisions for you and to access your medical records.  In addition, it states your wishes on how you want to be treated in the event that you are in a persistent vegetative state with no possibility of recovery, or in a terminal situation.  This instrument is the result of a US supreme Court decision which ruled that individuals can dictate in writing how they want to be treated with respect to end-of-life decisions, but the Supreme Court was specific that unless you make your wishes known, the state may dictate how you are to be handled in the event there is a need for you to be maintained on life support. 

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