Last Will and Testament
A Last Will and Testament is a legal document in which you indentify the individual(s) or entity you wish to give your real and personal property to upon your death.
If you have child(ren), you are able to nominate a guardian(s) for your minor child(ren) at the time of your death should your spouse or the biological parent of the child(ren) predecease you.
In order to carry out your wishes, you will also need to appoint an Executor. An Executor is responsible for the administration of your estate, which includes the financial matters, and distributing your real and personal property to your beneficiaries according to your wishes laid out in your Last Will and Testament. The Executor may be an individual or an institution.
In order to draft a Last Will and Testament you need to consider all possibilities that may occur upon your death. This means that you must be knowledgeable about your assets and debts, decide upon who your beneficiaries are, and how you wish for your assets to be divided and your debt obligations to be paid, while keeping in mind any goals or objectives you may have.
In Virginia, a Last Will and Testament must be signed by you in the presence of at least two (2) witnesses. It is also recommended that the Last Will and Testament be notarized at the time it is signed by you and your witnesses.
Advanced Medical Directive
In Virginia, any adult capable of making an informed decision may, at any time, make a written advance medical directive to address any or all forms of healthcare in the event that they are later to be determined incapable of making informed decisions for themselves. The advance medical directive may specify the healthcare the person does or does not authorize, appoint an agent to make healthcare decisions for the person, and specify an anatomical gift, if any, after the person’s death.
A written advance medical directive must be signed by the person in the presence of two (2) witnesses.
An advance medical directive may authorize an agent to take any lawful actions necessary to carry out the person’s decisions, including, but not limited to, granting releases of liability to medical providers, releasing medical records, and making decisions regarding who may visit the patient.
It shall be the responsibility of the person to provide for notification to his or her attending physician that an advance medical directive has been made. If an advance medical directive has been submitted to the Advance Health Care Directive Registry it shall be the responsibility of the person to provide his or her attending physician, legal representative, or other person with the information necessary to access the advance medical directive.
Powers of Attorney
A Power of Attorney is a writing or other record that grants authority to a person, known as an agent, to act in the place of another person, known as the principal, whether or not the term power of attorney is used. A power of attorney is effective when executed unless the principal provides in the power of attorney that it becomes effective at a future date or upon the occurrence of a future event or contingency. A power of attorney must be signed by a notary public in Virginia.
With some exceptions under Virginia law, an agent under a power of attorney may do the following on behalf of the principal or with the principal’s property only if the power of attorney expressly grants the agent the authority and exercise of the authority is not otherwise prohibited or limited by another statute, agreement, or instrument to which the authority or property is subject:
- Create, amend, revoke, or terminate an inter vivos trust;
- Make a gift;
- Create or change rights of survivorship;
- Create or change a beneficiary designation;
- Delegate authority granted under the power of attorney;
- Waive the principal’s right to be a beneficiary of a joint and survivor annuity, including a survivor benefit under a retirement plan; or
- Exercise fiduciary powers that the principal has authority to delegate.
The attorneys at The Carlberg Law Firm have experience in drafting Last Wills and Testaments, Advanced Medical Directives, and Powers of Attorneys, which they believe are vital to the best practice of family law. Whether or not you are going through a divorce, it is important that you ensure that these estate documents are up-to-date. Do not leave your future to fate.