Estate planning during COVID-19: finding peace of mind in uncertain times

You have probably heard the expression the “new normal” a lot lately.  Society defines “normal” and we try to conform to it. When life does not conform to our definition of “normal,”  we need words to describe what is happening to us. Thus, the “new normal.”

The latest “new normal” is the onset of the novel coronavirus pandemic that is sweeping the globe and forcing people out of their comfort zones, sometimes drastically. Normal routine has been suspended, with authorities urging:

“Stay at home!”

“Stay at least six feet away from other people!”

“Do not congregate in large groups!”

This week my six-year old started to make these judgments: “They really should be social distancing,” he opined, watching a small group of neighbors with their toddlers running around together in a front yard.  When our children start using “social distancing” as a verb, you know something has changed.  

As a social species, our instinct to be with other people is hard to overcome. But coronavirus is ridiculously easy to transmit and very difficult to contain, so drastic measures being urged by government health officials are needed to keep the most vulnerable from getting sick.

Life was already complicated even before this “new normal” descended upon the world, as routine trials and tribulations of daily life seemed quite challenging enough. Now, for every one of us, the specter of serious illness, or worse, for us and our loved ones has made everyday living much more difficult. Few of us will ever adjust to the need for physical isolation from friends and family (and almost every other human, for that matter). Worst of all, perhaps, absolutely no one knows when life can return to something that we are able to recognize as “normal.”

With this uncertainty, it is important now more than ever to make sure your affairs are in order. As an attorney supporting wills and estate planning in the Capitol Hill neighborhood for the past several years, I wanted to share some thoughts on simple ways to get started.

First, make a checklist of what you have. This checklist should include:

1. A list of tangible assets, including real property, vehicles and any valuable personal property, such as heirlooms, that you may wish to pass on to descendants.

2. Insurance policies, including medical, life, and for any property.

3. Other financial records, including, but not limited to bank and securities accounts, retirement accounts and tax records.

4. Medical records, especially if you or anyone in your household is suffering from a continuing or chronic illness.

5. Property settlement, child support and alimony agreements, if applicable.

6. Estate planning documents, including wills, trusts, powers of attorney, and advance medical directives (living wills).

Then look at your checklist, take note of what’s missing, and try to figure out how to fill in the gaps. Out of all of the above items, perhaps the most overlooked are basic estate planning documents. A will? “I’m still young and have no assets,” or “I’m too busy raising a family to think of one.” An advance medical directive? “They’re for the very old or very sick, and I’m young and healthy.”

For a lot of people estate planning is for the rich or elderly. But it is never too early to execute a will, and everyone, healthy or sick, should have an advance medical directive just in case something unforeseen happens.

Just as everything else is more difficult at this point, we now arrive at this question:   How does one draft and execute estate planning documents in the middle of a pandemic that is keeping people at a physical distance? Technology has made it easy to interact without meeting face-to-face, so drafting estate planning documents is easily doable. To date, a few states have adopted laws to allow for electronic signature of wills--but here, as with most places in the U.S, estate planning documents need to be executed, with witnesses, in person.

As I think about how my practice will adapt, I realize that now is the time to be creative. Use multiple pens. Wear protective gear. Hold outdoor will executions standing more than six feet apart. But in these uncertain times, this is something that we can still do to claim some peace of mind. 

If this resonates with you, please be in touch. I am still accepting new clients, and I particularly enjoy working with my neighbors. I understand the constraints we all have on our time -- particularly with children out of school and the need to educate them at home -- and am pleased to offer virtual consultations whenever you may have a free moment. And while the stay-at-home orders are in effect, I will send detailed instructions on how to execute your documents yourself. My initial consultation is free, and my fees are commensurate with the complexity of the matter and ability to pay.

If you are interested in a Will and/or a Living Will (also known as an Advance Medical Directive), trust, power of attorney, or an estate plan, please contact me at pyabut [at] prylaw [dot] com, or visit my website at  http://www.prylaw.com.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1411 H Street, NE, Washington, DC 20002 || (202) 670-2429 || pyabut@prylaw.com

Power of atttorney

If you have a will and/or a living trust, you may have a feeling that you have control over how your assets will go to your surviving family or friends after you die. But what if you need to someone you trust to take care of your affairs while you are still living? Maybe you are young and like to travel. Maybe you are a member of the armed services deployed overseas. Maybe you are of advanced age and unable to take care of yourself like you used to. Or maybe you simply want someone you trust to be in place to take care of your finances in case of an emergency. 

A power of attorney is a written authorization for someone to represent or act on your behalf. Powers of attorney are commonly used in financial matters and to appoint persons to make medical decisions in case of physical or mental incapacity. It is important to make a power of attorney "durable" so it does not expire if you become incapacitated, especially for financial matters.

 Your agent is required to act in your best interests at all times, as well as keep accurate records, keep their own property separate from yours ("commingling") and avoid conflicts of interest. You can give your agent the power to do a variety of actions on your behalf, including handling financial transactions, collecting government benefits, paying taxes or operating your business.

Click here for more information on powers of attorney.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1411 H Street, NE, Washington, DC 20002 || (202) 670-2429 || pyabut@prylaw.com

Whither Obergefell?

In 2015, the Supreme Court of the United States defined a federal constitutional right to marriage in the landmark 5-4 decision Obergefell v. Hodges. When Donald Trump ran for President of the United States, one of the promises he made was that he will choose conservative judges to fill vacancies in Article III federal courts, up to and including the Supreme Court. Now, President-elect Trump will have one seat to fill immediately upon taking office, replacing the late Justice Antonin Scalia and returning the Supreme Court to a 5-4 conservative majority.

Ever since the Court ruled that there is a constitutional right to marriage in Obergefell, conservative groups have been clamoring to have it overturned, returning regulation to the states. They think they have an opening in a new Republican president with a slim Republican majority in the Senate. People in the LGBTQ community are now worried that marriage equality opponents my now try to overturn Obergefell and return the country to the uneven hodgepodge of laws that existed before 2015. While this now seems unlikely based on the current political atmosphere, the fear is real.

No matter what happens with the law, it is still prudent to have your estate in order. At the very least, you should protect your assets with a will and your medical decision-making with an advance medical directive (living will). Also keep your transfer-on-death account (e.g., life insurance, bank accounts) beneficiary designates up-to-date and consider having a financial power of attorney in place as a contingency for incapacity. In the unlikely event that Obergefell is overturned, having an estate plan in place will help turn back challenges to your wishes and distribute your assets to your loved ones as you alone see fit.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1411 H Street, NE, Washington, DC 20002 || (202) 670-2429 || pyabut@prylaw.com

Informed Consent: Choosing your will fiduciaries and guardians

Wills and trusts have provisions that allow the testator or trust creator to choose people to act as fiduciaries for the assets that would be affected by that document. 

Fiduciaries include the executor (personal representative) for your will and trustees for a living or testamentary trust. Your executor needs to ensure that the probate process goes smoothly, that costs are paid and the court receives timely filings, and that your assets are distributed properly to your lawful heirs. Besides managing distributions from your trust, your trustee must maintain the integrity of your assets held in trust by ensuring that there is no waste or fraud. These positions require a serious commitment, so you need to be confident that they will be able to handle the responsibility of taking care of your assets. Some choose banks or other financial institutions to handle fiduciary duties rather than individuals.

One of the advantages that a will has over a trust is the ability to choose a guardian (or guardians) for your children or adult dependents. In reality, the probate judge assigned to your will actually has the final say on who becomes guardian, but deference is paid to the testator's wishes as long as it is in the best interests of the children or adult dependents. This choice may be deeply personal in nature and there is no particular formula that can or should be followed. It is important to talk to the person (or people) whom you wish to take care of your children or dependents before you execute your will. 

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1411 H Street, NE, Washington, DC 20002 || (571) 393-1236 || pyabut@prylaw.com

Just what IS an estate plan?

To many people, "estate planning" is something that only wealthy people with a lot of assets have to do. But is it true?

If you think of the word "estate," what comes to mind? A big mansion on a large tract of land? A fortune in stock options? In truth, virtually everyone has one. An estate is the sum total of your assets less liabilities that you leave behind. After you die, the law has procedures in place to assist your survivors and the probate court in how those assets are distributed and those liabilities satisfied. It is important to ensure that you have a plan in place to dispose of your estate with as few complications as possible for your survivors. And that is the essence of an estate plan -- some direction for the disposition of your assets.

If you look at what should be included in an estate plan, you can see that everyone can check at least one or two items off the following list:

• Instructions for distributing your assets when you die, via will and/or trusts
• Naming beneficiaries for transfer-on-death assets (e.g.,  retirement accounts, bank accounts, life insurance)
• Guardian for minor children and manager for their inheritance
• Instructions for your care should you become disabled or incapacitated before you die (advance medical directive)
• Instructions for transfer of business interests at retirement, disability or death
• Provide for protection from creditors to both the estate and your survivors
• Minimize taxes, court costs and unnecessary legal fees

And if any (or all) of the above apply to you, you need an estate plan! If you don't have one when you die, the state will distribute your assets to your heirs and creditors according to law, and it may not be what you have in mind. 

An estate plan begins with a will and/or trust, plus an advance medical directive. It also contains information on who owns what, how your major assets are titled (e.g., real estate, automobile, business), who would receive proceeds from retirement accounts and government benefits like Social Security, and how your debts should be paid to creditors. Younger people are less likely to have a lot of accumulated wealth, but as a result they have much more to lose than someone more secure financially, especially if there are children involved.

So whether you own a giant mansion with an ocean view or rent a one-bedroom apartment with three roommates, you have an estate. And what happens to that estate after you die is determined by what you do while you are still alive.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1411 H Street, NE, Washington, DC 20002 || (571) 393-1236 || pyabut@prylaw.com

When should you change or replace your will?

By their very nature, wills are static instruments. Over the years, the rules have made them difficult to change easily, sacrificing convenience for the sake of ensuring authenticity. On the other hand, life does not stay the same from moment to moment, let alone from year to year. Therefore, it is important to keep your will up to date whenever it becomes necessary.

While it is unnecessary to change or replace a will on a whim, there are a few circumstances when you should consider it:

• Moving. A properly drafted will should have references to the state or country of residence of domicile. If you change your permanent residence, you need to make sure that your will is still valid according to the rules of your new jurisdiction.

• Sudden or major life change. A major change in your life, including (but not limited to) the birth/adoption of a child, marriage, divorce, death of spouse or close relative, serious disability, acquisition or disposal of real estate, or sudden wealth or major loss of assets, may require an immediate reassessment of your estate plan.
• Unavailability of named fiduciaries or guardians. If the persons you nominate for fiduciary positions or guardians in your will become unavailable due to illness, incapacity, death or an unwillingness to serve, you should make the appropriate changes to your will.
• Passage of time. The simple act of living is, by nature, a life-changing event. Most life changes are gradual, so one cannot expect his/her life to be the same five, ten, twenty years in the future. Most people will not keep their estate plans current at all times, so therefore, you should reassess your affairs, including your will, every two or three years as a matter of course.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

Wills vs. Living Trusts

A common and basic estate planning dilemma involves choosing whether to create a living trust or to write a will. These two instruments are similar because they create mechanisms for the distribution of property after death. But they have very different structures and uses, which are important to note when creating an estate plan.

When determining whether to use a trust or a will (or some combination thereof) to distribute assets, you should consider the advantages and disadvantages of each instrument.

WILLS

Advantages:

1. Less expensive on the front end. It typically costs more to set up a trust than to draft and execute a will.

2. Governing law. The law of wills has more protections in place for probated estates than laws governing trusts.

3. Time limit for creditors. The probate court sets a deadline for creditors to make claims on an estate.

4. Maintain title on property. There is no need to transfer title of property to another entity to make a will valid.

Disadvantages:

1. Public record. Upon death, your will is filed in probate court and is available for anyone to view.

2. Expensive probate. Probate can be both slow and costly.

3. Incapacity of testator. A will is only effective upon death, and cannot create mechanisms if the testator were to become mentally or physically incapacitated.

4. Multiple probate proceedings for out-of-state property. If you die with property outside the state where the will is effective, that property must be probated separately in that state.

5. Loss of control over fiduciaries/guardians. While you can nominate your own fiduciaries and guardians in a will, the probate court ultimately has the final say and has the discretion to ignore the testator's wishes if he/she believes it's in the best interest of the estate or children.

LIVING TRUSTS

Advantages: 

1. Avoid probate. Living trusts dispose of property like wills, but without the money and time costs associated with probate.

2. Incapacity of trustee. A living trust can immediately transfer property to someone else in the event of mental or physical incapacity without a court order.

3. Privacy. Unlike a will, a trust instrument is not a public document.

4. Out-of-state property. There is no need to probate out-of-state property held in trust.

5. Control over fiduciaries. Since a court is not involved in trust administration, you have complete control over who you name as trustee.

Disadvantages:

1. Initial cost. Unlike creating and executing a will, drafting documents and setting up the trust can be expensive.

2. Loss of ownership of trust property. You must relinquish formal title to the property placed in trust to a new entity.

3. No cut-off date for creditors. Creditors do not have a time limit for bringing claims against your trust.

4. No guardians for minors. You cannot designate guardians for minors in a trust.

For individuals and couples with large or complex estates, a good option is to utilize some combination of the two.  A will is highly recommended for anyone with minor children wishing to make a recommendation of guardianship as well as for anyone wanting to distribute property upon their death without losing control of it in their lifetimes. Under the right circumstances, supplementing that will with a living trust can provide you the security of knowing that your wishes will be carried out without interference from a court. Regardless of the approach you choose, be sure you contact an attorney before proceeding because much can go wrong if your trust or will is drafted or executed improperly.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

Wills on the Hill

This past November, my wife and I had a our first child. We very quickly discovered the trials and tribulations of being new parents: lack of sleep, overnight feedings and diaper changes, uncertainty over the right things to do to soothe your child, and the virtual disappearance of a social life. The experience, as so many of you know, has been life-altering -- so very challenging but also extraordinarily rewarding.

As a new parent, I understand the impact that raising a child has on the daily schedule.  While caring for a newborn, finding time to eat (and shower!) can prove a challenge--the idea of tackling tasks beyond that may seem like a distant dream. As time goes on, these time commitments change but don't necessarily decrease. As a result, you may end up putting aside tasks that you meant to do.

And if you are a new parent, maybe you're thinking a little bit more about the future than you before. Will you have to find daycare? Where are the best elementary schools in your area? What happens if he or she gets accepted to Harvard?

And what happens if you die?

That last question is likely to be the last thing on your mind when you're young and single and invincible. But when you start a family, it becomes important to consider how they will be provided for if the unthinkable happens. Many people have pensions or retirement plans that automatically pass to a designated beneficiary upon death (be sure to keep them up to date!), or jointly own a house or car or other property with their spouse, so there is no question as to where these assets will go. However, that potentially leaves a lot of assets and valuables whose ownership would be in dispute. That's where a will comes in. A properly written and executed will informs everyone you leave behind of your last wishes and eliminates sources of conflict and confusion.

I have started a program called Wills on the Hill because I know the limits on time that parents face. While I can help draft and execute wills throughout Washington, DC, and Northern Virginia, if you live in Capitol Hill or nearby neighborhoods, I offer home visits for initial consultations and other meetings as needed.  Yes, I can do house calls during your child's nap time, on evenings and weekends, or whenever you may have a free moment.  

The rewards of this effort have been multiple for me. In the months that I've been offering this service, it has been a pleasure to fill a need within the community by easing the way for people seeking to secure their families' futures. On a more personal level, it has been wonderful to grow my practice closer to home, which allows me a bit of flexibility to peek in and check on my son's progress rolling over. So if this service is of interest to you, please review the resources on my site -- and as always, please contact me with any questions.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

What is a "residuary estate?"

Generally a will contains three types of property to be distributed: direct bequests (gifts) to specific individuals, property to be held in trust for someone else ("testamentary trusts"), and the residuary estate.

A "residuary estate" contains all of the assets leftover after direct bequests and testamentary trusts.  In other words, it is what remains after you have given everything away to those whom you specify in the will.  Furthermore, any specific bequests that lapse before you die (for example, gifts to specific people who die before you do) automatically pass into the residuary estate.

In the probate process, all taxes, administrative fees, and creditors' claims are paid out of the residuary estate before it passes to your named beneficiary or beneficiaries in the will.  Therefore, if you have precious family heirlooms or other items that you want other people to have after you die, it is important to specify them as gifts to keep them safe from probate.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

The strange tale of marriage equality in Utah

Just before Christmas, marriage equality arrived in the most unlikely of states.  

In 2004, Utah voters approved Amendment 3 to the state constitution defining marriage as between one man and one woman by a 66-34% margin.  On December 20, U.S. District Judge Robert Shelby struck down that provision an unconstitutional violation of the 14th Amendment's Equal Protection Clause.  This decision marks the first time a federal judge has ruled on marriage equality on Constitutional grounds as a "fundamental right" and that there was no "rational basis" in refusing to grant it to gay couples, a departure from the Supreme Court's decision in Windsor in 2013 that maintains that regulation of marriage is in the purview of the states and not the federal government.

Immediately thereafter, hundreds of gay couples lined up in courthouses around the state to get marriage licenses as the state filed an appeal with the U.S. Court of Appeals for the 10th Circuit.  What followed was a series of appeals to three levels to attempt to stop county clerks from issuing licenses to gay couples:

• December 22: The 10th Circuit rejected a motion for a stay for technical reasons.
• December 23: Judge Shelby declined to grant a stay (delay) of his decision, which means same-sex marriages could continue while the appeal is pending.  The 10th Circuit also denied a motion for a temporary stay.
• December 24: The 10th Circuit rejected an emergency order to stay Judge Shelby's decision.
• December 31: Utah requested the U.S. Supreme Court for a stay.

Finally, on January 6, 2014, the U.S. Supreme Court granted Utah's request for a stay, ending the issuance of marriage licenses to gay couples.  However, some 1,000 couples who had already taken vows remain legally married.  Those who did not must now wait for the 10th Circuit to rule sometime in the next few weeks.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

Limits on wills

A will can give peace of mind by determining how your assets will be distributed after you die.  However, there are limits on what property a will can cover.  Assets that cannot be subject to a will include:

• Property held in joint tenancy with right of survivorship.  This generally affects married couples, but anyone can acquire and own property jointly.  A right of survivorship means that if one co-owner dies, the other automatically takes over the other's share.

• Pensions, retirement, life insurance, and other accounts that have right of survivorship and/or named beneficiaries.  These accounts already have beneficiary provisions that a will cannot override.  Transfer of ownership would be effective immediately at death and before a will goes through probate.

• Assets held in trust.  While a will can set aside assets to create a trust, it cannot affect property already held in trust for a named beneficiary.

The common thread in these instruments is the named beneficiary.  In short, a will only can dispose of assets whose ownership would be in question upon death of the testator.  Any will provision that tries to change named beneficiaries for established trusts or payable-on-death accounts is automatically invalid.  Furthermore, payable-on-death and right-of-survivorship assets are not subject to estate taxes.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

Where there's no will, there's still a way

"food NOW! food NOW!" by author

When a person dies without a will, state law substitutes and property is distributed according to statute.  This is called "intestate succession."  

In Virginia, if you die with:

• Children, but no spouse -- children inherit 100%.
• Spouse, but no children -- spouse inherits 100%.
• Spouse and children, all of whom are descendants of that spouse -- spouse inherits 100%.
• Spouse and children, at least one of whom is from someone other than than that spouse -- spouse inherits 1/3, children inherit 2/3.
• Parents, but no spouse or children -- parents inherit 100%.
• Siblings, but no spouse or parents -- siblings inherit 100%.

For a complete list of intestate inheritance rules should the decedent have no siblings, parents, spouses or children, see Va. Code § 64.2-200.

In the District of Columbia, if you die with:

• Children, but no spouse -- children inherit 100%.
• Spouse, but no children or parents -- spouse inherits 100%.
• Spouse and children from you and that spouse, and spouse has no other descendants -- spouse inherits 2/3, children inherit 1/3.
• Spouse and children from you and that spouse, and spouse has descendants from another relationship --  spouse inherits 1/2, your children inherit 1/2.
• Spouse and children from you and someone other than that spouse -- spouse inherits 1/2, your children inherit 1/2.
• Spouse and parents -- spouse inherits 3/4, parents inherit 1/4.
• Parents, but no spouse or children -- parents inherit 100%.
• Siblings, but no spouse, children or parents -- siblings inherit 100%.

For the complete rules of intestate succession for DC, go to D.C. Code § 19-306, § 19-307, § 19-308, § 19-309, § 19-310, § 19-311, and § 19-312.

Because these are default rules, it is important that you create a will so you do not have the state distributing your property in a manner that is against your wishes.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

Changing your will

Like the tides, life does not stay the same from one moment to the next.  Changes may be sudden and immediate, like having children or selling your house, while others may happen gradually over time.  Chances are that if you have already written a will, changes in your life may not be reflected in what your final wishes were at the time.

There are two ways to make changes to a will:

1. You can write an entirely new will.  A properly executed and witnessed will automatically supersede and replace all others before it.
2. You can amend provisions of your will while leaving the rest of it intact.  This is called a "codicil," and it is not a matter of simply crossing out and replacing items on the page.  A codicil must properly be witnessed and executed like a complete will for it to be effective (i.e., signed before two witnesses, and both witnesses signing in turn).  Any amendment that is not properly executed will be deemed invalid by a probate court.

A codicil may also be used to "revive" or reinstate a former  ("revoked") will.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

Peace of mind on a piece of paper

Life is full of uncertainty.  People get married, kids are born, accidents and illnesses happen.  Death is an inevitable fact of life, and it can happen without warning.  And since we cannot take our possessions with us when we die, it is important to figure out well ahead of time how your assets will be distributed when the unthinkable happens.

A will is a statement (oral or written) that directs the disposition of your property after you die.  It becomes final when it is properly signed and witnessed, and it becomes effective after you die and when all probate procedures are met.  

It is important to note that a will has no legal effect as long as the testator (the person who wrote the will) is still alive.

What you need to know before you write a will

Before you create a will, you have to gather necessary information.  This includes:

• Beneficiaries and heirs -- people or charitable organizations who will inherit your property.
• Property (including where it is located and who is on the title) and debts.
• Bequests -- the names of people and specific property they will receive, and who will receive the property if they do not outlive you.
• Residuary beneficiary -- the person or people who will receive property you do not specify in the will.
• Executor (and alternate) -- the person or people who will be responsible for carrying out the will.
• Guardian (and alternate) -- person or people who will care for your children or dependents.
• Provisions for disposition of your debts and funeral expenses.  Usually, this comes from the residuary estate (i.e., what is leftover after specific bequests of property).  Please note that will executions often take place after the funeral, so it may be prudent to take care of burial arrangements separate from a will.

Elements of a will

In order to be legally binding, a will must meet several basic requirements.  These are: 

• Legal age -- you must be 18 in both DC and Virginia.
• Testamentary capacity -- also referred to as "of sound mind," meaning you must have the sufficient mental capacity to create a legal will.
• Intent to make the document or statement your will.
• The will must be voluntary, without coercion or duress.
• The will must properly dispose of your property.
• The will should be written and witnessed by two other parties (though wills can be oral).
• The will must be properly executed, per state law.  In DC and Virginia, this means that you must sign the will in front of two witnesses, and both witnesses in turn must sign as well.  

PLEASE NOTE: There is no notary requirement for a will in either Virginia or DC.

Once your will is properly signed and witnessed, you should keep the original in s secure place, either in a safety deposit box, safe, or with your attorney.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

16 (plus DC) down, 34 to go

Today, Illinois Gov. Pat Quinn signed marriage equality into law, making his state the 16th to legalize same-sex marriage.  Religious groups have pledged to challenge the law in court, but barring any judicial setbacks, gay couple will be able to obtain marriage licenses starting on June 1, 2014.

Last week, Hawaii became the 15th state to adopt marriage equality when Gov. Neil Abercrombie signed it into law.  And in October, gay marriage became legal in New Jersey when Gov. Chris Christie dropped an appeal challenging a court ruling it constitutional in light of June's Supreme Court's decision invalidating the Defense of Marriage Act.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

Visitation (Virginia)

An essential element of any child custody arrangement is visitation for the non-custodial parent.  Under the law, the parent who does not have physical custody is presumed to have visitation rights.  There are no recorded cases of a judge completely denying the right of visitation.

Ideally, visitation arrangements are worked out between the parents and ratified by the judge.  If the parties cannot agree, the judge will determine visitation based on what would be in the best interests of the child under the following guidelines in listed Va. Code § 20-124.3:

1. The age and physical and mental condition of the child, giving due consideration to the child's changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child's life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child's contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination. 

While judges have never denied visitation rights, they do have the option of ordering supervised visitation if it is deemed necessary and in the best interests of the child.

Denial of visitation by the custodial parent is a violation of the custody order, and the non-custodial parent may petition the court to enforce it.  On the other hand, failure to return the child at the designated time has more serious potential consequences.  If the child is not returned within 48 hours, it may be considered an abduction.  If the abducting parent stays in Virginia, it is a Class 1 misdemeanor, punishable by up to 12 months in jail and up to a $2,500 fine.  If the abducting parent crosses state lines, it is a Class 6 felony, punishable by one to five years in imprisonment, or up to 12 months in jail and/or $2,500 fine.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

What is an "intrafamily offense?"

In a D.C. Civil Protective Order (CPO) case, the petitioner needs to prove that he or she was a victim of an intrafamily offense or act of violence.  Under § 16-1001(9) of the D.C. Code, "intrafamily violence" is "an act punishable as a criminal offense committed by an offender upon a person to whom the offender is related by blood, legal custody, marriage, having a child in common, or with whom the offender shares or has shared a mutual residence; or with whom the offender maintains or maintained a romantic relationship not necessarily including a sexual relationship." It is important to note that under this definition, an intrafamily offense must necessarily be a physical assault or battery, or something that can be prosecuted as a crime, like stalking.  This means that yelling or cursing at a child, family member, or spouse/partner, even if done repeatedly over a long period of time, probably will not by itself be enough for a judge to issue a CPO.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Presentation: Pendente Lite Orders in Virginia

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Pendente lite from philliefan_99

This is a presentation on pendente lite (or temporary) orders in Virginia, which can be obtained while family law cases are being litigated.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Ore Tenus: The Divorce Hearing

You have  negotiated all of the support and child custody issues, divided all of your property to each spouse's satisfaction, and filed all of the necessary paperwork with the court.  You are now at the end of the process, which in Virginia is called the ore tenus hearing.

In Virginia, many uncontested divorces can now be completed without ever setting foot in a courtroom.  However, there are situations where a hearing is necessary (for example, if the defendant spouse is absent and cannot be found).  Assuming there are no issues to be decided, the plaintiff can request the hearing any time after the defendant answers the complaint.

At an ore tenus hearing, the judge listens to testimony from the party asking for divorce and his/her corroborating fact witness.  These questions cover how long the parties have been living separate and apart without cohabitation and without interruption, whether there is intent to remain separate and apart, whether there are support/custody and property issues still in dispute, and if there is any hope for reconciliation.

If there are no issues in dispute, the hearing itself can tend to be less formal than the usual proceeding.  The corroborating witness may be allowed to be present for the petitioner's testimony, and the questions are routine.  The entire proceeding usually lasts around 10 to 15 minutes, and when it is over and the judge signs the decree and the parties are officially divorced.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Quick Analysis of Today's DOMA and Proposition 8 Rulings

This morning, the Supreme Court struck down provisions of the 1996 Defense of Marriage Act (DOMA) as unconstitutional.  In a 5-4 opinion, Associate Justice Anthony M. Kennedy, writing for the majority, states that "DOMA is unconstitutional as a deprivation of the liberty of the person protected by the Fifth Amendment of the Constitution."  In the other marriage equality case, also a 5-4 decision (Chief Justice John G. Roberts writing for the majority), the Court ruled that the petitioners in the California Proposition 8 case did not have standing to appeal, which means that the trial court's decision invalidating Proposition 8 stands and California can resume recognition of same-sex marriages.

Q: Who does the DOMA decision affect directly?

A: Everyone in the country who is in a legal same-sex marriage. 

The main purpose of DOMA was to prevent the federal government from recognizing same-sex marriages that several states have deemed legal.  This delegitimatization prevented same-sex spouses from enjoying over 1,000 benefits under federal law that opposite-sex couples get automatically upon legal marriage.  With DOMA's demise, legally married same-sex couples will soon have rights to Social Security survivorship, tax status, inheritance, and many other benefits listed in the U.S. Tax Code and other federal laws.

Q: Does the DOMA ruling mean that states where same-sex marriages are illegal must recognize gay unions?

A: No. 

The Supreme Court did not give state same-sex marriage statutes "full faith and credit," which means that the 38 states that do not already recognize same-sex unions don't have to start doing so.  The effect of the ruling is that the Court leaves the question of marriage to the individual states.  This is in contrast to the 1967 Loving v. Virginia case, where the Court ruled that laws banning interracial marriages were unconstitutional nationwide.

Q: Who does the Proposition 8 decision affect directly?

A: Only residents of California.

The Court did not rule on the merits of the case, meaning that it did not discuss whether same-sex marriages should or should not be recognized on the state level.  In plain English, the Court dismissed the case on a technicality.

Q: What is "standing?"

A: Standing means the ability to bring a suit before a court. 

Proposition 8 (page 49 in this 2008 voter's guide)was a referendum passed in 2008 that forced California to stop performing gay marriages.  The law was challenged and repealed at the trial level, but on appeal state officials declined to defend the statute.  An interest group called ProtectMarriage.com, which led the initiative to get Proposition 8 on the ballot, filed the appeal in place of the State of California.  The Court ruled that this group did not suffer "personal and tangible harm" and thus could not bring an appeal, and therefore returned the case to the trial court, whose ruling striking down Proposition 8 would immediately become effective.

Cases referenced:

U.S. v. Windsor, 12-307 (June 26, 2013)

Perry v. Hollingsworth, 12-144 (June 26, 2013)

Loving v. Virginia, 388 U.S. 1 (1967)

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com