10.3 Estate Plan Integration

• Library: Estate Planning in Virginia (Virginia CLE) (2022 Ed.)

10.3 ESTATE PLAN INTEGRATION

10.301 Will.

Even if a client intends to pass his or her entire estate in the form of nonprobate assets, a will is still advisable. ¹⁴¹¹

A. Failure of Beneficiary.

If the nonprobate beneficiary predeceases the client, absent alternative disposition, the asset will pass to the client's estate. If simultaneous deaths occur, joint assets with right of survivorship will pass proportionately to the client's estate and to the estates of the other joint tenants. The client's will should be drafted to handle any of these unexpected contingencies.

B. Omitted Assets.

Some assets may not lend themselves to nonprobate titling, or there may be assets that the client has forgotten. In either case, assuming the intestacy laws are inadequate, the client should have a will to dispose of these assets. Even where the intestacy laws pass the assets to a desired beneficiary, a will may still be preferable to provide for contingent beneficiaries, selection of the fiduciary, waiver of security on a fiduciary bond, provision for administrative powers, tax elections, and other contingencies.

10.302 Tax Planning.

A. Effect on Marital Deduction.

As stated in paragraph 10.204(A)(2) above, it is essential that the client coordinate nonprobate assets with the marital deduction where the client has a potentially taxable estate for federal estate tax purposes. Most nonprobate titling with a spouse will...