When do I need a Will?

You need a Will—formally known as a Last Will and Testament—when you want to control how your assets are distributed after your death. A Will allows you to clearly state who should receive your property, name guardians for minor children, and appoint someone you trust (an executor) to carry out your wishes.

You should consider creating a Will if any of the following apply to you:

• You own property, real estate, or personal possessions you want to pass to specific individuals or charities
• You are married, in a committed relationship, or have children
• You want to avoid family conflict or confusion about your wishes
• You want to name a guardian for your minor children in case something happens to you
• You want to ensure your estate is handled by someone you trust
• You want to prevent your assets from being distributed according to state intestacy laws, which may not align with your wishes

Even if your estate is relatively simple, a Will can provide peace of mind by ensuring your intentions are legally documented and honored. It’s a critical part of any comprehensive estate plan.
 

What happens when I die and I have a Will? 

When you pass away with a valid Will in place, your Will serves as the legal document that directs how your assets should be distributed. It names your beneficiaries—the people or organizations you’ve chosen to receive your property—and appoints an executor, the person responsible for carrying out your wishes. Having a Will in place helps ensure your wishes are followed and gives your loved ones clarity and legal authority to manage your estate during a difficult time.

Your Will is submitted to the probate court, which oversees the process of validating the Will and authorizing your executor to manage your estate. This process is called probate. During probate, the executor will:

• Identify and gather your assets
• Pay any debts, taxes, or final expenses
• Distribute your remaining assets according to the instructions in your Will

It’s important to note that not all assets go through probate. Some types of property—like jointly owned real estate, accounts with designated beneficiaries (like life insurance or retirement accounts), and assets held in trust—generally pass outside of your Will and are not governed by probate.

Types of Property

• Property that has either a co-owner or a beneficiary: This type of property does not pass under the terms of a Will, but, instead, passes to the co-owner or the beneficiary. If Mr. & Mrs. Smith own a home as joint tenants, Mrs. Smith will inherit the home when Mr. Smith dies, because joint tenancy allows inheritance by survivorship. If Mr. Smith has a life insurance policy naming Mrs. Smith as the beneficiary, Mrs. Smith will receive the life insurance proceeds because she is named as the beneficiary.
• Property with a title or deed, which does not have a co-owner or a beneficiary: When Mrs. Smith dies, her home, which was owned in her name only after Mr. Smith’s death, will pass under the terms of her Will. The same is true for any bank accounts, stock accounts, or other assets, which were titled solely to Mrs. Smith. These assets will pass under the terms of Mrs. Smith’s Will. This category of property is called probate property, because it must be probated before it can be re-titled into the name of the beneficiary. A Will specifies the disposition of probate property.
• Untitled personal property: Consists of items such as household goods, antiques, collections, clothing, etc. These are items that do not have a deed, title or other owner’s certificate. These items will also pass under the terms of Mrs. Smith’s Will.
   

What is Probate?

Probate is court approval for the re-titling of assets from the name of the person who died to the name of the beneficiary. The executor named under the Will brings the Will, a death certificate and a list of assets to court after someone dies. The court oversees the process of giving the assets passed under the terms of the Will to their new owners.

What are the problems with Probate?

Probate is public, and can be slow and expensive. The inventory filed with the court is public record, so anyone can look at the assets you owned at your death. An estate can take over a year to settle because of all the steps involved in the Probate process. Probate tax (in Virginia this is $1 on every $1,000 of the value of the estate), transfer fees and inventory fees must be paid during the Probate process. If the executor decides to hire an attorney to assist with Probate, the attorney’s fees can significantly increase the cost of probate.

Can Probate be avoided?

Probate can be avoided with certain types of ownership (joint tenancy, for example) and with the use of a Revocable Grantor Trust (commonly referred to as a Living Trust). There can be gift tax and other problems associated with joint tenancy, so use of the Living Trust is generally preferable. The Trust avoids probate because it does not die. 

If you set up a Living Trust, you transfer your assets to your Trust and then you manage the Trust for as long as you are able. When you are no longer able to manage your Trust, the successor trustee(s) (whom you have named in your Trust) take over the management for you. At your death, the terms of the Trust govern the disposition of your assets.

Is settling an estate with a Living Trust easier than going through Probate?

Yes, because there is no change in ownership. The Trust owns the property before and after your death; only the identity of the trustee changes. Settling an estate with a Living Trust is faster than with Probate, and since no inventory is filed with the court, there is always privacy.

Is a Living Trust more expensive to set up than a Will?

Yes, please see our Services and Fees page for relevant pricing information.

How do I know if I need a Living Trust?

Whether you need a Living Trust depends largely on the type and value of the property you own and your estate planning goals.

If you own very little probate property—which generally includes assets titled solely in your name, such as real estate, bank accounts, or vehicles without joint owners or designated beneficiaries—then the probate process may be relatively simple and a Living Trust may not be necessary.

However, if you own a significant amount of probate property, or if you own real estate in more than one state, a Living Trust can help streamline the process. A properly funded Living Trust allows your assets to bypass probate entirely, saving your heirs time, legal fees, and court involvement. It also provides greater privacy and continuity in the management of your affairs after death or incapacity.

Another key factor to consider is the size of your estate. As of 2025, the federal estate tax exemption is expected to drop significantly due to the scheduled sunset of provisions under the 2017 Tax Cuts and Jobs Act. Unless Congress takes further action, the exemption will return to approximately $5 million (adjusted for inflation, likely around $6–7 million) per individual, down from over $13 million in 2024,

If the total value of your estate—including real estate, investment accounts, business interests, and life insurance—is near or above the expected exemption limit, you should consider advanced planning options, such as a Living Trust combined with tax-efficient strategies, to help minimize or avoid estate taxes.

If I have a Will or a Living Trust, is this all I need for estate planning?

No. While a Will or a Living Trust is essential for directing how your assets are handled after your death, a complete estate plan also includes planning for what happens if you become incapacitated during your lifetime.

As people live longer, the likelihood of facing a period of illness, injury, or cognitive decline increases. Estate planning isn’t just about distributing your assets—it’s also about making sure someone you trust can manage your medical and financial decisions if you’re unable to do so yourself.

A well-rounded estate plan should include:

• A Durable Financial Power of Attorney – to authorize someone to manage your finances if you’re incapacitated
• An Advance Medical Directive (or Healthcare Power of Attorney) – to name someone to make healthcare decisions on your behalf

These documents work together with your Will or Living Trust to protect you, your loved ones, and your wishes—both during your life and after.

How do I plan for incompetency?

Using a Living Trust is a wonderful way to provide for your financial care if you become incompetent. Because you name your successor trustee when you establish your Trust, you can be certain that someone you trust will have charge of your financial affairs if you cannot manage them yourself. If you have re-titled all of your assets to your Trust, your successor trustee will have a much easier time completing financial transactions on your behalf than just using a Durable General Power of Attorney.

You can also choose to plan for incompetency with the use of Powers of Attorney. There are two broad categories of Powers of Attorney: those that are concerned with medical issues, and those that are concerned with financial issues.

• Advance Health Care Directive: An Advance Health Care Directive is a combination of a Living Will and a Medical Power of Attorney. A Living Will allows you to make decisions about what type of medical care you want in certain situations. For instance, a Living Will allows you to specify how your care will be handled if you are in a persistent vegetative state. Do you want to be kept alive, or would you prefer to have the “plug pulled”? A Medical Power of Attorney allows you to choose a trusted friend or relative to make medical decisions for you in the event you cannot. An Advance Health Care Directive is in legal force only during the period of time that you are incapacitated, and requires medical certification before becoming effective. If you become able to make your medical decisions again, say after recovering from an accident, the Advance Health Care Directive stops being legally effective and you resume making all decisions about your care.
• Financial Powers of Attorney: Although not as comprehensive an approach to financial management as a Living Trust, a Power of Attorney is a valuable document. There are several ways to design a financial power of attorney, depending on what you wish to accomplish. A General Power of Attorney comes into legal effect at the time that it is executed. It gives a chosen individual, termed an “agent” or “attorney-in-fact,” the right to make financial decisions for you, from selling your possessions to paying your bills. This is useful in case you have surgery, a stroke or an accident and have to be hospitalized for an extended period of time. This allows someone you choose to pay your bills and manage your finances during that time so your credit rating remains intact.

If the Power of Attorney is durable, it continues in full force through illness or incapacity. Another approach is the Springing Power of Attorney, which is written and executed in advance, but only takes legal effect upon a pronouncement of incapacity by two licensed physicians. This is helpful if you do not feel comfortable with another person having power over your financial affairs until it is absolutely necessary.

A Limited Power of Attorney is written for specific periods of time, such as while you are out of the country, or for a specific task, such as the selling of your vacation property in North Carolina.

The reason that a Power of Attorney is only part of your estate planning package is because your Power of Attorney remains in effect only while you are alive. Your attorney-in-fact can carry on your business during your lifetime (even while you are incompetent), but cannot use the document to wrap up your affairs after your death. After your death, your attorney-in-fact has to use a Will or Living Trust to settle your estate.