Contents

• Library: Estate Planning in Virginia (Virginia CLE) (2018 Ed.)

TABLE OF CONTENTS

Chapters and Authors

About the Editor and Authors

Acknowledgments

Preface

In Memoriam

Electronic Forms: Instructions and Table

Volume 1

CHAPTER 1: INTERVIEWING THE CLIENT
1.1	INTRODUCTION
1.2	STARTING THE PROCESS
1.201	Initial Contact
1.202	Scheduling the Interview
1.3	COLLECTING THE INFORMATION
1.301	What to Ask For
1.302	How to Ask for It
1.4	RECOGNIZING ETHICAL DILEMMAS
1.5	CONFIDENTIALITY AND CYBER SECURITY
1.6	PROPOSED METHODOLOGY FOR CONDUCTING THE INTERVIEW
APPENDIX 1-1: INITIAL LETTER TO CLIENT
APPENDIX 1-2: ENGAGEMENT LETTER
APPENDIX 1-3: ENGAGEMENT LETTER—ALTERNATIVE FORM
APPENDIX 1-4: LONG-FORM QUESTIONNAIRE
APPENDIX 1-5: SHORT-FORM QUESTIONNAIRE

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CHAPTER 2: ETHICAL ISSUES
2.1	INTRODUCTION
2.2	RELATIONSHIP BETWEEN CLIENT AND LAWYER
2.201	Lawyer Competence - Rule 1.1
2.202	Scope of Representation -Rule 1.2
2.203	Diligence -Rule 1.3
2.204	Communication -Rule 1.4
2.205	Fees -Rule 1.5
2.206	Confidentiality of Information -Rule 1.6
2.207	Conflicts of Interest- Generally - Rule 1.7
2.208	Conflicts of Interest - Prohibited Transactions - Rule 1.8
2.209	Conflicts of Interest- Former Clients -Rule 1.9
2.210	Imputed Disqualification - Rule 1.10
2.211	Representing Client as Both Business Entity and Individual
2.212	Client With Diminished Capacity- Rule 1.14
2.213	Safekeeping Property -Rule 1.15
2.214	Retaining Client's Original Documents
2.215	Declining or Terminating Representation - Rule 1.16
2.216	Duties to Prospective Client-- Rule 1.18
2.3	LAWYER AS ADVISOR
2.301	Nonlegal Advice
2.302	Referrals to Other Professionals
2.4	LAWYER AS ADVOCATE
2.401	Candor Toward the Tribunal - Rule 3.3
2.402	Truthfulness in Statements to Others -Rule 4.1
2.403	Communication With Persons Represented by Counsel -Rule 4.2
2.404	Dealing With Unrepresented Persons - Rule 4.3
2.5	LAW FIRMS AND ASSOCIATIONS
2.501	Responsibilities Regarding Nonlawyer Assistants -Rule 5.3
2.502	Multi-Jurisdictional Practice of Law-Rule 5.5
2.6	INFORMATION ABOUT LEGAL SERVICES
2.601	Communications Concerning a Lawyer's Services -Rule 7.1
2.602	Solicitation of Clients - Rule 7.3

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CHAPTER 3: MAPPING THE PLAN
3.1	INTRODUCTION
3.2	FORMS OF OWNERSHIP
3.201	Fee Simple
3.202	Tenants in Common
3.203	Joint Tenants with Right of Survivorship
3.204	Tenants by the Entirety
3.205	Community Property
3.206	POD Accounts
3.207	TOD Ownership of Securities
3.208	TOD Ownership of Real Estate
3.3	PROBATE PROCESS—A BRIEF OVERVIEW
3.301	Probating the Will
3.302	Qualifying the Personal Representative and the Trustee of a Testamentary Trust
3.303	Fiduciary Bond and Surety on the Bond
3.304	Filing the Inventory
3.305	Filing the Annual Accounting
3.306	Statement in Lieu of Accounting
3.307	Settling the Estate
3.4	THE AUGMENTED ESTATE
3.401	Surviving Spouse's Right to Elect a Share of Decedent's Estate
3.402	Description and Timing
3.403	Included Property
3.404	Excluded Property
3.405	Meaning of "Estate" and "Property"
3.406	How the Augmented Estate Is Satisfied
3.407	Effect on Federal Estate Taxes
3.5	OTHER RIGHTS
3.501	Family Allowance
3.502	Exempt Property
3.503	Homestead Allowance
3.6	REASONS FOR HAVING A WILL
3.601	To Dispose of Property
3.602	To Reduce Estate Taxes
3.603	To Name Fiduciaries

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3.7	COMPARISON OF TESTACY AND INTESTACY
3.8	TYPES OF TRUSTS
3.801	In General
3.802	The Virginia Uniform Trust Code
3.803	Revocable Versus Irrevocable Trusts
3.804	Living Versus Testamentary Trusts
3.805	Grantor Versus Nongrantor Trusts
3.9	USES OF TRUSTS
3.901	Avoiding Probate
3.902	Managing Assets
3.903	Tax Savings
3.904	Providing for Minors and Other Persons Under a Disability
3.905	Providing for Spendthrifts
3.906	Providing for a Spouse, While Controlling the Disposition of the Remainder
3.10	ALTERNATIVES TO TRUSTS
3.1001	Uniform Transfers to Minors Act
3.1002	Uniform Custodial Trust Act
3.1003	POD Bank Accounts, Savings Accounts and United States Savings Bonds, TOD Investments, and Real Property
3.1004	Survivorship
3.1005	Simultaneous Death Act
3.1006	Limited Partnerships and Limited Liability Companies
3.11	OTHER DOCUMENTS
3.1101	Durable Powers of Attorney
3.1102	Advance Medical Directives
3.1103	Burial Instructions and Appointment of an Agent to Dispose of Body
3.1104	Anatomical Gifts
3.12	TRANSFER TAX CONSIDERATIONS
3.1201	Overview of the Federal Gift Tax
3.1202	Overview of the Federal and Virginia Estate Tax
3.1203	Lifetime Versus Testamentary Gifts
3.1204	Estates Subject to the Federal Estate Tax

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3.1205	Overview of the Generation-Skipping Transfer Tax
3.1206	Estates Subject to the Generation-Skipping Transfer Tax
3.13	PLANNING FOR MARRIED COUPLES
3.1301	Marital Agreements
3.1302	Surviving Spouse's Elective Share of the Decedent's Augmented Estate
3.14	IMPLEMENTING THE PLAN
3.1401	Need for Additional Information and Documents
3.1402	Checklist for Preparation of Documents
3.15	CONCLUSION
3.1501	Careful Review of All Information
3.1502	Coordination with Other Professionals
3.1503	Coordination with Existing Plan Documents and Transfers
3.1504	Coordination with Estate Plans of Other Family Members
3.1505	Following Up with the Client
CHAPTER 4: DRAFTING THE WILL
4.1	INTRODUCTION
4.2	WHAT CONSTITUTES A WILL?
4.201	Definition of a Will
4.202	"Will" Construed
4.203	Essential Elements
4.3	WILL SUBSTITUTES AND ALTERNATIVE PLANNING
4.301	General Considerations
4.302	Necessity of a Will
4.303	Coordinating Non-Probate Assets with the Estate Planning Documents
4.4	FUNDAMENTAL WILL PROVISIONS
4.401	Exordium Clause
4.402	Tangible Personal Property
4.403	Specific and General Bequests
4.404	Real Property
4.405	Residuary Estate
4.406	Powers of Appointment
4.407	Trusts for Certain Beneficiaries
4.408	Guardians
4.409	Presumption of Survivorship
4.410	Debts and Expenses of Administration
4.411	Taxes
4.412	Appointment of Executor and Trustee
4.413	Testimonium
4.414	Attestation
4.5	BASIC CONSIDERATIONS
4.501	Clear Identifications
4.502	Limitations
4.503	Will Speaks as of Date of Death
4.504	References to Virginia Code Sections That Predate Enactment of Title 64.2
4.6	PREREQUISITES FOR A VALID WILL
4.601	Statutory Formalities for Drafting
4.602	Testamentary Capacity
4.603	Statutory Formalities for Execution
4.604	Multi-Jurisdictional Issues
4.605	Holographic and Nuncupative Wills
4.7	AMENDING THE PLAN: CODICIL OR NEW WILL
4.8	THE AMERICAN TAXPAYER RELIEF ACT OF 2012 AND THE TAX CUTS AND JOBS ACT OF 2017: ESTATE, GIFT, AND GST TAXES
4.801	American Taxpayer Relief Act of 2012
4.802	Tax Cuts and Jobs Act of 2017
4.9	MATCHING THE ESTATE PLANNING DOCUMENTS WITH THE CLIENT
4.901	Candidates for Simple Wills with No Trusts
4.902	Candidates for Simple Wills with Guardianship Provisions and Contingent Trusts for Children
4.903	Separate Share or Single "Pot" Trust?
4.904	Marital Deduction Planning
4.905	Exemption Bypass Planning
4.906	Portability Versus Bypass Planning
4.907	Marital Deduction Planning Options
4.908	Funding the Marital Deduction
4.909	Providing for Postmortem Marital Deduction Tax Planning
4.910	Integrating Generation-Skipping Transfer Tax Planning with the Marital Deduction
4.911	Candidates for Pour-Over Wills and Living Trusts
4.912	Drafting Issues for Prior Marriages
4.10	SELECTED PROBLEM AREAS
4.1001	Troublesome Client Scenarios
4.1002	Checklist of Common Problem Areas in Drafting
4.1003	The Roots of Most Drafting Problems
4.11	COMMON CLAUSES AND UNCOMMON RESULTS
4.1101	Debts of the Decedent
4.1102	Death Taxes
4.1103	Tangible Personal Property
4.1104	Residuary Estate
4.1105	Real Property
4.1106	The Changing Fraction
4.1107	Spendthrift Clauses
4.1108	Marital Deduction Reduction
4.1109	Delayed Vesting or Postponed Enjoyment?
4.1110	Pour-Over to Inter Vivos Trust
4.1111	No Contest Clauses
4.1112	Doctrine of Equitable Election
4.12	MODERN TRUST LAW
APPENDICES TO CHAPTER 4
APPENDIX 4-1: NON-TAX WILL FOR SINGLE PERSON WITH TRUST FOR YOUNG BENEFICIARIES
APPENDIX 4-2: NON-TAX WILL FOR MARRIED PERSON WITH TRUST FOR CHILDREN
APPENDIX 4-3: WILL WITH SPECIAL NEEDS TRUST FOR DISABLED CHILD
APPENDIX 4-4: TAX WILL WITH OUTRIGHT DISPOSITION OF MARITAL SHARE
APPENDIX 4-5: TAX WILL WITH QTIP OR GENERAL POWER OF APPOINTMENT MARITAL TRUST

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APPENDIX 4-6: POUR-OVER WILL
APPENDIX 4-7: CODICIL
APPENDIX 4-8: DRAFTING SUGGESTIONS FOR CLAUSE TO ELECT PORTABILITY
CHAPTER 5: DRAFTING THE TRUST
5.1	INTRODUCTION AND SCOPE
5.2	VIRGINIA UNIFORM TRUST CODE
5.201	Overview
5.202	Drafting Considerations
5.203	Default Provisions; Mandatory Provisions
5.204	Default Provisions That May Be Overridden
5.3	REVOCABLE LIVING TRUST: WHAT IS IT?
5.4	OVERVIEW OF THE POUR-OVER WILL AND LIVING TRUST ARRANGEMENT
5.5	ON FORMS
5.501	Length

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