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Hampton Roads Estate Planning and Administration Law Blog

Sunday, October 1, 2017

When Will Power Is Not Enough


By: Joseph T. “Chip” Buxton III, Certified Elder Law Attorney*

One of the most common estate planning techniques is the Last Will and Testament.  However, if an individual passes assets at death by Will, usually someone needs to qualify before the Circuit Court in the jurisdiction in which they died.  This process is called Probate.  In Virginia, probate is supervised by private attorneys appointed by the court.
Read more . . .


Friday, September 1, 2017

Saving Taxes With Charitable Remainder Trusts


By: Joseph T. “Chip” Buxton III, Certified Elder Law Attorney*

There is a very powerful estate planning tool that may enable you to reduce your liability for income and estate taxes and diversify your assets in a tax-advantaged manner.  It is called a Charitable Remainder Trust (CRT).  Here is how it works.  A CRT is an irrevocable trust that makes annual or more frequent payments you, typically until you (and, if appropriate, your spouse) die.


Read more . . .


Tuesday, August 1, 2017

The Case for the Joint Living Trust


By: Joseph T. “Chip” Buxton III, Certified Elder Law Attorney*

In recent years, the revocable living trust has become the choice of record for estate planning.  A trust is a contract between the maker of the trust, normally called the Grantor, and the manager of the trust, typically called the Trustee.  The trust is a set of instructions whereby the Grantor enters into an agreement with the Trustee to manage certain assets r-titled in the name of the Trustee.  For example, a Grantor may have a large investment account.
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Saturday, July 1, 2017

Spousal Rights in Their Deceased Spouse's Estate


By: Joseph T. “Chip” Buxton III, Certified Elder Law Attorney*

On January 1, 1991, the Virginia General Assembly enacted a new statute regarding the rights of a spouse in their deceased spouse’s estate.  This statute introduced the concept of an “augmented estate.”  What this meant was that when a husband or wife died, the surviving spouse had certain rights in their marital property defined as the augmented estate, even if the decedent had written a will or a trust designed to disinherit their spouse.  The surviving spouse could simply file a claim in court for a share of the couples augmented estate and could elect to take 1/3 of the augmented estate if there were children or ½ of the augmented estate if there were no children.
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Thursday, June 1, 2017

Payable on Death


By: Joseph T. “Chip” Buxton III, Certified Elder Law Attorney*

Payable on Death (POD) accounts are used by many individuals so that when they pass away the account is designated to a specific individual or group of individuals.  They are used on bank accounts, brokerage accounts, retirement accounts and/or insurance policies.  Naming a beneficiary on a financial account can be useful from an estate planning perspective, but is dangerous in many cases.  For example, if you have a large bank account or brokerage account and you name a child as payable on death beneficiary, and the child predeceased you, that account will normally go through the probate process at your death and be distributed by your Executor or your Administrator of the estate.
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Monday, May 1, 2017

A Legacy Trust: Making Your Estate Last For Generations


By: Joseph T. “Chip” Buxton III, Certified Elder Law Attorney*

A great estate planning tool is a revocable living trust called a Dynasty Trust designed to last for multiple generations.  The Dynasty Trust contains a special provision for the continuation of the trust after your death for the benefit of your children and beyond.  At your death, the Dynasty Trust creates a separate “Legacy Trust” from the original trust for the benefit of each beneficiary you name.  The Legacy Trust protects the assets in the Legacy Trust from the creditors of the beneficiary, from estate and death taxes at the death of the beneficiary, from claims of their spouses in the event of a divorce, and can insulate assets in the trust from being deemed “available resources” in the event the beneficiary seeks public assistance under Medicaid for nursing home care.
Read more . . .


Saturday, April 1, 2017

Legacy Trusts(s) for Children


A Dynasty Trust contains special provisions for the continuation of the trust after your death(s) for the benefit of your beneficiaries.  The Trust provides for the creation of a Legacy Trust.  A separate Legacy Trust will be set up from the original trust for each of the beneficiaries you have identified.  The Legacy Trust is designed to protect the assets in the Legacy 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 trust 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.

In most cases, the initial beneficiary may serve as the trustee of his/her Legacy Trust, and as such, will have full discretion with respect to the investment of the assets so long as they remain in the trust.
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Wednesday, March 1, 2017

The Inherited IRA


By: Joseph T. “Chip” Buxton III, Certified Elder Law Attorney*

An Inherited IRA, 401K, §357 or §403L Plan and Thrift Savings Plan are retirement accounts that are passed at the death of the owner to someone other than a spouse.  According to the US Supreme Court[1], an Inherited IRA (or similar plans) are subject to the claims of the beneficiary’s creditors.  This means if you leave your IRA or other retirement account to a child or another individual other than your spouse, a creditor (which might include a spouse of a child in a divorce suit) can come after that retirement plan to satisfy their claim.  This would require the beneficiary to cash out the IRA, pay the income taxes due, then pay off the creditor.
Read more . . .


Wednesday, February 1, 2017

How to Guarantee Litetime Income, Save Taxes and Help Charity


By: Joseph T. “Chip” Buxton III, Certified Elder Law Attorney*

Since 1969, the federal tax code has authorized the use of a very powerful estate planning tool to reduce a taxpayer’s liability for capital gains taxes, income taxes, and estate taxes, all while guaranteeing a steady flow of income.  This tool is called a Charitable Remainder Trust.  Here is how it works.

You establish an irrevocable trust naming yourself as the trustee and contribute highly appreciated assets such as land, stock and/or rental property to the trust.
Read more . . .


Sunday, January 1, 2017

To Trust or Not to Trust: Should your Trust be the Beneficiary of an IRA?


By: G.P. Wakefield Buxton, JD, LL.M., MBA

One of the more difficult questions facing estate and financial planners overs the last few decades has been whether or not to name an individual’s trust as the beneficiary of a retirement account.
Read more . . .


Monday, December 26, 2016

Estate Planning Don’ts

Preparing for the future is an uncertain business, but there are steps you can take during your lifetime to simplify matters for your loved ones after you pass, and to ensure your final wishes are carried out. Planning for what happens to your property, or who cares for your family members, upon your death can be a complicated process. To simplify things, the following list can help you avoid some of the pitfalls you may encounter before, or even long after, you create your estate plan.


Don’t assume you can plan your estate by yourself. Get help from an estate planning attorney whose training and experience can ensure that you minimize tax implications and simplify the process of settling your estate.

Don’t put off your estate planning needs because of finances. To be sure, there are upfront costs for establishing the estate plan; however establishing your estate plan is an investment in the future well-being of your family, and one which will result in a far greater cash savings over the long term.

Don’t make changes to your estate plan without consulting your attorney. Changes in one area of your estate plan could impact other provisions you have made, triggering unintended legal or tax implications.

Don’t assume your children will intuitively know your wishes, and handle the situation appropriately upon your death. Money and sentimental items can cause a rift between even the most agreeable siblings, and they will be especially vulnerable as they deal with the emotional impact of your passing.

Don’t assume that once you’ve prepared your estate plan it is set in stone. Estate planning documents regularly need to be revised, often due to a change in marital status, birth or death of a family me

mber, or a significant change in the value of your estate. Beneficiary designations should be periodically reviewed to ensure they are up to date.

Don’t forget to notify your family members, friends or other beneficiaries of your estate plan. Make sure your executor and successor trustee have access to your end-of-life documents.

Don’t assume your spouse will handle everything if something happens to you. It’s possible your spouse may be incapacitated at the same time, for example if you both are injured in the same accident. A proper estate plan appoints alternate representatives to handle your affairs if both you and your spouse are unable to do so.

Don’t use the same person as your agent under both the financial and healthcare powers of attorney. Using the same individual gives that person an incredible amount of influence over your future and it may be a good idea to split up the decision-making authority.

Don’t forget to name alternate agents, executors or successor trustees. You may name a family member to fill one of these roles, and forget to revise the document if that person dies or becomes incapacitated. By adding alternates, you ensure there is no question regarding who has the authority to act on your or the estate’s behalf.


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