Fiduciary Boot Camp: Should You Record the Will?

by Jonathan A. Nelson

A significant goal in many estate plans is avoiding the time and expense of formal probate.  A decedent’s estate may avoid probate of assets by using a trust, beneficiary designations, and certain titling or contract documents. In Virginia, smaller estates may be eligible to use a Small Estate Act affidavit.  

If you are a fiduciary dealing with a Virginia estate which has successfully avoided having probate assets requiring you to be sworn in as the executor), should you still record the will at the courthouse?  I suggest that the answer is yes in most circumstances, for the following reasons.

1.       Preservation of the original document: The original will is very important in Virginia until it is recorded.  It may be years down the road before you know that you need to record it, particularly if it comes up because of a real estate title problem.  Getting it out of your hands and into the court’s records avoids accidental destruction or becoming lost amid the decedent’s other papers being stored or given away.

2.       Updates records: Any time a Virginia Small Estate Act affidavit is used, and sometimes when government benefits or real estate title issues come up, having the will already recorded saves time and steps later.

3.       Proof of testacy: Until the will is recorded, there is a presumption on paper that the decedent was intestate.  The will lays out who the beneficiaries are, and those people rather than the heirs at law have standing to litigate matters related to the estate administration; recording the will also starts the time limit to challenge that will’s validity.  Both of those are helpful in reducing future litigation and allowing finality to the estate.

4.       Placeholder for executor: Although this category is fortunately not a frequent issue, when it does arise, the avoidable problems are significant.  The will names the decedent’s choice of the person to be in charge of the estate; in an intestate estate, any heir and even creditors can qualify to administer the estate.  Some of the most difficult litigation matters for my clients have dealt with removal of someone who swore there wasn’t a will and took over the estate at a time when there was no will on record.  This has included a child intentionally cut out of the will and an ex who wanted access to recent medical records.  Conversely, I have had a matter where we recorded the will and I found out later a family member who had been excluded as a beneficiary had unsuccessfully tried to qualify as administrator, but was stopped because the will had already been filed at the courthouse.

Very occasionally there may be a reason to intentionally not record a will (or not record it right away); this has come up at our firm only once in the last five years.  The reasoning for that decision is very fact specific, and is best discussed with a competent estate administration attorney.

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consulta

Cross-Post: The Scary Truth of Trademark Scams — and How to Prevent Them

by Jonathan A. Nelson

From time to time, clients ask me what to do with an apparent legal notice they have received.  My colleagues at our associated firm Gammon & Grange, P.C. have written the following helpful article on one scam that targets small business owners and other dealing with intellectual property.

If it feels like scammers and charlatans are hiding in every digital corner of the internet, it’s because they often are. Within the past few years, deceptive practices have taken the form of trademark scams. And they’re targeting creators and organizations who enact due diligence to protect their intellectual property.

Registering your creative work is mandatory to defend your creative work against infringers. However, this vigilance is introducing new risk to trademark owners. That’s because when you file a trademark application with the United States Patent & Trademark Office (USPTO), your trademark and owner information becomes public record.

Bad actors have been using this public information to send deceptive documents (that appear official) to trademark owners, luring them into costly scams. Be aware that the USPTO does not send invoices. If you receive a registration invoice, it is likely part of an extensive network of patent and trademark bureau scams.

How Trademark Scams Weaponize Deadlines

Trademark scams often use information about a trademark’s mandatory filing deadlines to deceive owners into sending them money to maintain their trademark.

To keep your trademark registration alive, you must file mandatory maintenance filings five to six years after registration. You also must renew your registration before the tenth year of registration lapses.

Continue reading here.

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Estate Planning in Practice: Moving to a New State

by Jonathan A. Nelson

We live in a mobile society, and people change their state of residence for many reasons, including work, cost of living, family, and retirement.  When moving to a new state, do you need to do anything with your estate plan?

First, the good news: between the Full Faith and Credit clause of the U.S. Constitution and state statutes on the topic, as long as they were valid in your old state, the old will and most other documents will be recognized by the new state and given effect.

With that said, there are still aspects of the documents that are state-specific.  Some are purely procedural – a Texas will might include a direction that probate be an Independent Administration, but Virginia doesn’t have that process, so the instruction simply won’t have any effect.  Others are just questions of efficiency – for instance, a Maryland will may include a testamentary special needs trust with no ill effect in Maryland; if that will is probated in Virginia, the special needs trust will still work but could cost ten thousand dollars per year in administrative expenses which could have been avoided by having the special needs trust in its own standalone document. 

Some things can be more substantive.  As one example, Virginia permits gifts of tangible personal property in a list that isn’t executed with the same formalities as a will; however, that list isn’t itself a will, so a state other than Virginia may not recognize that list as binding.  Puerto Rico allows a successor guardian for an incapacitated adult to be nominated in a will, but in Virginia you would instead need a pre-death court order naming a standby guardian.  A gift under the Uniform Transfer to Minors Act may transfer to the child at a different age in the new state (although thanks to South Carolina’s passage of this Act three years ago, all U.S. states have at least some version of it).  Creditor claims can also be handled differently in the new state, and different provisions may be needed to keep sentimental assets from falling into creditors’ hands.

Another area that could cause difficulty are rights that supersede the estate plan documents.  A surviving spouse, for example, may have the right to make claims in the new state that disrupt what was previously a carefully balanced estate plan.  Or the new state might not extend the same rights to a nonmarital partner.  (As a practical matter, regardless of home state law I would tend to be overdescriptive in provisions involving a nonmarital partner: even traveling through a state that does not recognize the relationship may cause problems if, for example, a medical decision needed to be made after a car crash.)

Trusts can have significant value after interstate moves.  They retain much (but not all, particularly as to spousal rights) of the law of the old state, providing continuity and predictability.

When moving between states, I recommend consulting a lawyer in the new state.  He or she may advise that you do not need any changes to your documents, or may want to talk to your old estate planning attorney about differences, but either way can help fix potentially disruptive surprises before it is too late. 

It is also helpful to speak with your estate planning attorney about your documents and how you hold title if you own real estate in a different state from your residence: many of the same issues arise since that real estate would pass in an ancillary probate under that second state’s laws.

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Trusts 101: Benefits of a Trust Before Death

by Jonathan A. Nelson

My previous post in the Trusts 101 series looked at benefits an estate planning trust provides in setting plans for after death, but there can be benefits before death and in certain circumstances it can be very helpful.  These include:

 1.       Incapacity Planning: To the extent assets have been transferred into the trust, a successor trustee is often able to manage finances more systematically and smoothly than someone using a power of attorney, as the trust covers contingencies the POA may not.  In the event of an unexpected incapacity, the authority and flexibility of a trust can be very helpful in both moving quickly and weathering the storm.

2.       Orderly Transitions:  With a gradually increasing incapacity, the trust can allow a cooperative and progressive transition using a co-trustee to make up for what the grantor can’t do at this moment, or anymore.  The trust and its separate recordkeeping also offer better protections against financial abuse, particularly in the event the incapacity interferes with the ability to see how the other person is assisting, versus a power of attorney.

3.       Complex Family Dynamics: Every family is different, and sometimes peace is best kept by addressing natural points of discord.  These may include children from separate relationships, spouses with different life expectancies, and interaction with extended family; or, before the grantor’s death, accounting for a loved one who is disabled, struggles with addictions, has litigious tendencies, or is manipulative (or vulnerable) where money is concerned.  For all of these, building provisions into the trust now can give the grantor peace of mind and free those relationships from being dominated by money concerns.

4.       Management of Business or Investment Property: There is significant overlap with post-death benefits of having a transition plan in place for a business or investment, but you can find improved ability to retain talent or attract investors when you have such a plan.

5.       Early Involvement of Professional Management: For some people, the amount of work or the needs of their survivors will push them toward having professional or corporate trustees after death. Where those trustees are already involved before death (such as if a grantor steps down as trustee or passes along the management of assets), it can make the transition smoother.

6.       Segregated Assets for Particular Purposes:  Not all estate plans call for a single trust to do everything.  Whether there are guarantees in a premarital agreement or legal or moral obligations from a prior marriage, a standalone trust or a subtrust with distinct assets can be a convenient way to earmark assets and provide specific instructions to a future trustee.

7.       Balanced Interests of Beneficiaries: Similarly, not all needs of future beneficiaries are known at the time a trust is set up, and sometimes the level of control provided by a trust can be useful in establishing a balance in access between current family members and a subsequent spouse, or account for significant lifetime transfers to be accounted for as between children.

8.       Some Protections against Creditors (Including Future Creditors of Beneficiaries): While true creditor protection trusts are set up very differently from most estate planning trusts, there is still an element of protection the trust can provide, including against predatory “inheritance advance” lenders.

Next in this series: When Would a Trust be Unnecessary or Counterproductive?

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

LAW UPDATE: Virginia Legislature Kills Electronic Estate Plan Documents (Again)

by Jonathan A. Nelson

With the Virginia legislature past the halfway point for its 2025 legislative session, I see that this year’s iteration of electronic estate plan documents has died in committee.  While variations on this theme are introduced every year (and while I don’t usually wade publicly into politics), there are a few good reasons to avoid electronic estate plan documents, even if you do live somewhere that has authorized them.

Since the 1677 Statute of Frauds in England, there has been a high level of formality required for fiduciary documents.  The documents set forth a person’s instructions in circumstances where they cannot personally attend to them (whether a will, which only takes effect after the death of the testator, or a power of attorney, which is utilized while the principal is physically absent).  By the end of the 1800s, formality reached a high-water mark where documents were thrown out for small failures, such as a witness leaving the room then coming back or a testator signing a sealed envelope containing a will but not the will itself.  Over time since then, the pendulum has swung in the opposite direction, with courts approving for probate notes by the attorney that the testator had never seen, a digital page from an electronic notetaking program, and (in one Australian case) an unsent text message.

In Virginia, there is a statute setting out the required formalities (Va. Code § 64.2-403), but also a “savings statute” (Va. Code § 64.2-404) allowing a judge to find that a document was intended as a will notwithstanding failing certain formalities.  The statute nonetheless makes clear that the one unwaivable formality is the testator’s signature; the case law requires that the document itself be intended as a will, and merely expressing intent to make a gift in a future will is insufficient.

The debate on level of formality is often cast as finding the balance between allowing a person to freely express their wishes and making sure they are in fact firm intentions and not just passing thoughts.  There is a third part to the equation often left out, however: the people implementing the documents.  An executor must swear that the document presented is, to the best of his knowledge, the last will of the deceased; he is then charged with administering the estate in accordance with those instructions.  On either count, he is at some risk if he has sworn that oath and begun paying creditors or making distributions and then someone shows up later with a text message.  This risk is present for physical documents with signatures, too, but at a much lower threshold since a testator would tend to keep important documents where they can be found.  There are implementation problems even for a document like a power of attorney – an agent presenting an original physical copy (say, at a bank) is helpful authentication that the power has not been revoked, but an electronic copy cannot be pulled back in the same way.

As much as electronic indications of agreement or consent are useful for internet commerce and everything from youth sports leagues to land transactions, some documents are so important that the formalities of using paper are still very helpful, and at the top of my list are wills and powers of attorney.

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Lessons from Litigation (and LAW UPDATE): How to Prove a Deceased Person’s Claim

by Jonathan A. Nelson

The Virginia Supreme Court this month issued an opinion in Bon Secours-DePaul Medical Center, Inc. v. Rogakos-Russell, addressing Virginia’s rules on testimony with a deceased party, commonly called the “Dead Man Statute.”

 The Dead Man Statute has two basic components:

(1)      where there is a claim “by or against” a deceased person or his estate (and also for certain other unavailable persons), there must be disinterested corroboration of the basic elements of the claim; so, for instance, a child could not claim an oral contract with a deceased parent to be paid at $200 an hour from the Estate for lifetime personal care unless there was some outside confirmation of the agreement;

(2)       however, statements by the deceased person which would otherwise be hearsay may generally be admitted as evidence.

The two components have a recognized side effect: the hearsay statement allowable under the second part of the statute must be corroborated in accordance with the first part before it can be used by the interested party.

While the statute is often used defensively by an estate to require disinterested corroboration before acknowledging a claim, in the Bon Secours-DePaul case, the estate of a Greek Orthodox priest brought a wrongful death claim against a hospital, and the only direct evidence of the cause of eventual death was the decedent’s own oral statements that he fell after leaning on a stretcher bed whose wheels should have been locked.

Testimony that the decedent made these statements was introduced by several family members, another priest, and a doctor.  The Court found that the statements were sufficiently corroborated because the priest and the doctor were disinterested in the result, and further that the statements did not make the decedent a ‘witness’ requiring additional corroboration in their own right – he is a ‘hearsay declarant’ about whom the witnesses testified, and, having passed on to the next life, he has no remaining interest in the affairs of this life.

There is one important question which the Court declined to rule on in this case: whether the Dead Man Statute’s corroboration is even required where the hearsay is offered in favor of the deceased party rather than by its opponent.  However, because the Court ruled (and this is consistent with centuries of law) that the decedent is not a party, it seems to me a fair inference that the decedent’s survivors will still need corroboration – the decedent is not strictly on their side, either.  In fact, it is not always clear which side the decedent would be on. Consider an example where someone’s will has been probated and then a second will is introduced. Testimony of the decedent’s hearsay statements about which of the two documents is consistent with his wishes would likely be introduced by  both sides; it would create a rather uneven playing field if only the party who lost the race to the probate office had to corroborate the decedent’s statements.

The Dead Man Statute can be technical to apply.  If you are looking at litigation by or against an estate, including cases not directly related to probate issues, seek advice from counsel experienced in its use.

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Trusts 101: Why Use a Trust?

by Jonathan A. Nelson

Revocable living trusts are the most used trusts in our practice.  They are powerful and useful estate planning tools, but they aren’t right for everyone, and I don’t try to oversell them.  Trusts often require considerable customization by the attorney to meet the individual’s needs and circumstances, time and perseverance on the client’s part to fund the trust properly (if I prepare your trust, I provide you with some instructions for this), and a higher commitment for the Trustees to maintaining the assets and documents versus other types of estate planning.  Further, the documents are considerably longer (one local firm’s stock trust is 1.5 times as long as The Lion, the Witch, and the Wardrobe; mine are significantly shorter, but are still a lot of reading) and they require more work just to understand what is required by the document.

 Given the effort and cost involved, clients sometimes wonder what advantages a trust has over just having a will.  Bear in mind that with a will, a probate estate is opened with the court, and the executor’s three jobs, roughly speaking, are to gather the assets, pay the creditors, and distribute to beneficiaries.  For what happens to your estate plan after you pass away, a trust allows key differences, including:

1.       Probate Avoidance: Assets pass outside of probate, saving time and costs, including state and local probate taxes.  The Trustee still has an obligation to account for the assets, but instead of reporting to a court-appointed Commissioner of Accounts, the Trustee only needs to satisfy the beneficiaries that the accounting is sufficient.

2.       Unified Planning: A trust can unify and distribute all assets, versus the more splintered usage of beneficiary designations on death, reducing the chance of accidental inequity, unintended consequences (such as what happens if the only named beneficiary on the form has passed), and potential for abuse.  There are also better options to prioritize gifts in a different order than the law sets for estates, in the event there are unsatisfied creditor claims.

3.       Investment Goals: Trusts allow continuity and direction for labor intensive or time sensitive holdings, such as rental properties or small businesses, and allow the appropriate person to become (or remain) the manager, rather than throwing in all of the beneficiaries as partners.  In many instances, this is very helpful in avoiding liquidation of investments at a suboptimal time.

4.       Tailored Distributions: In most cases, distributions from a trust can be designed with more detail, more structured timeframes, and more flexibility for future contingencies than wills allow.  A distribution under a will is almost always the asset or cash being given to a beneficiary as soon as probate is complete, with no strings or oversight; a trust can change any aspect of that distribution, in many variations, including: 

a. A trustee can manage assets and expenses in the short or long term for a beneficiary who still needs to mature or has limitations.  This includes minors, special needs beneficiaries, or beneficiaries with substance abuse issues, but is sometimes used just to stretch out distributions over some years. That might be done to minimize tax liability, protect heirs from creditors, or even allow a  beneficiary to gain experience in financial management progressively before receiving the bulk of their inheritance.

b. The assets can be held for a specific amount of time and the income paid annually to a beneficiary, while the principle is held for or distributed to another person (for instance, a second spouse who is a lifetime income beneficiary before the principle passes to the prior children).  Alternatively, income and principle could be used for particular contingencies (such as care and veterinary costs during the life of a pet).

c. Gifts can be made contingent on future events (such as a child’s successful graduation from college) or future needs (like down payment for a beneficiary’s first home or a reserve fund for a parent’s elder care).

5.       Creditor Protection: The anticipated benefit under a will can be attached by a beneficiary’s creditor, included in the beneficiary’s divorce proceeding, or even contracted away inadvisedly by the beneficiary himself; a trust can provide protection against any of these.

6.       Charitable Giving: Some giving strategies, particularly ones that seek tax advantages by blending giving with gifts to beneficiaries, require using a trust to lock the plan into place.

7.       Reduced Taxes: Using a trust can provide exemptions or strategic timing of transfers or values used, thus reducing Federal and state tax obligations while ensuring the assets still serve their intended purposes.

Whether you are planning, administering, or benefiting from a trust, an experienced estate planning attorney can ensure you understand the outcomes, obligations, and processes involved.

Next time in Trusts 101: Benefits of a Trust Before Death

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Cross-Post: Best Practices for Receiving a Charitable Gift

by Jonathan A. Nelson

Estate planners like the attorneys at Smith Pugh & Nelson, PLC, are most frequently on the giving end of charitable contributions, but it is helpful to know how it works on both sides so everything is in place before it’s time to file your tax return.  The following is an informative article from July 8, 2022, by my nonprofit law colleagues Ken Liu and Steve King at our associated firm Gammon & Grange, P.C.

A donor has just sent your nonprofit a generous check. How do you return this kind and important donor handshake?

There are specific steps charitable organizations receiving donations must follow to comply with IRS tax laws. Charitable organizations should know that donors cannot claim a tax deduction for contributions of $250 or more unless they obtain a contemporaneous, written acknowledgment of the contribution from the supported charity. Though obtaining this acknowledgment is the donor’s responsibility, an organization can, and should, assist the donor. The charity does this by providing a timely, written statement containing the charity’s legal name, the amount of cash contribution, a description (but not value) of non-cash contribution, and certain statements and good faith estimates, as described in IRS publication 1771.

The acknowledgment must be contemporaneous, which is described by IRS publication 1771 as “the earlier of the date on which the donor actually files his or her federal income tax return for the year of the contribution; or the due date (including extensions) of the return.”  A year-end statement itemizing all gifts from that donor during the calendar year is sufficient, but best practices and common courtesy encourage monthly receipts.

Note for donors: A donor should not attach the acknowledgement to his or her individual income tax return but must retain it to substantiate the contribution. For non-cash gifts that total more than $500 in one tax year, donors must file Form 8283. For more information on donor’s tax deduction claims, see IRS publication 1771.

A timely acknowledgement also builds donor rapport and reinforces that your organization values conscientious fiscal stewardship.

Ken Liu has worked with hundreds of charities and other nonprofits as Director of Gammon & Grange’s trademark and branding practice. Unfortunately, his earliest experience making a sacrificial charitable contribution was not positive.  Ken says, “When I was fairly young in my career, I gave a $1000 donation to a charity, which at the time, was a huge amount. Though a big sacrifice, it was a donation I was happy making to a charity I much admired.

“When months passed without any donation acknowledgement or word of thanks, I remember how disappointed I felt. I finally wrote, asking whether this gift was received and if I could expect a receipt.  Months later I received a receipt and an apology with it, but I couldn’t deny that my enthusiasm for and confidence in this charity had taken a hit.” As Ken experienced, year-end receipt will satisfy the IRS, but omission of more timely receipts can feel to donors like a rebuffed handshake.

Ken is now the Board President of Good Samaritan Advocates, a faith-based legal aid program in the suburban Washington area launched and incubated by Gammon & Grange [in 2006]. Marked by the incident, Ken makes sure every gift, especially the smallest ones, are receipted and recognized in a timely and personalized manner. “Now on the inside of charitable organizations, I understand the importance of promptly acknowledging donations and including a note of appreciation. Donation receipts are important for building donor relationship and necessary for donors who itemize deductions. It is a personal way to recognize their kind gift.”

Looking for a nonprofit lawyer? Gammon & Grange, P.C. has many knowledgeable nonprofit attorneys and church attorneys who can advise you on many areas that pertain to your nonprofit. Contact us today to discuss your particular legal needs.

For religious organizations, learn more about tax exemption for churches in our recent article.

Authored by Gammon & Grange, P.C. authors; contributions from Ken Liu and Steve King.

Interested in Good Samaritan Advocates? Learn more here.

Original article here.

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Lessons from Litigation: No-Contest Confusion Helps a Church

by Jonathan A. Nelson

Virginia has a long and storied relationship with no-contest (or ‘in terrorem’) clauses, where a beneficiary can be cut out of an estate or trust if they bring a legal challenge to the testamentary document or certain incidents of administration.  Many people writing estate plans see such clauses as an antidote to family dissention, protection against a particular black sheep, or just a way to provide a final “don’t tread on my estate plan” from the grave.

As with any sharp tool, these clauses must be used with care; not appreciating their dangers can have unintended consequences. A Virginia Supreme Court case from 1956,  Womble v. Gunter, provides a stark warning of this possibility.  The Court begins with a near-Dickensian opening paragraph presaging the conflict to come:

George F. Parramore, Sr., died testate on June 4, 1945. His somewhat complicated will, including five codicils, was duly probated and Benj. T. Gunter, Jr., and Quinton G. Nottingham qualified as executors. The testator devised and bequeathed all of his property in various amounts and proportions to his ten living children and numerous grandchildren.

In all, there were thirty named family beneficiaries among the six documents.  The Will had a no-contest clause, which ended with, “Should all my legatees and devisees contest my will, then my entire estate shall pass to Christ Episcopal Church in Eastville.”  Although not discussed in the opinion, once admitted to probate, the will and all five codicils became treated as one document, with the result that a challenge to even one portion became a challenge to the whole unless fully successful. 

The hitherto amicable family descended into dissention, centered on a suit to invalidate the will.  When the dust had settled, the trial court concluded that all thirty beneficiaries had challenged the will and lost any benefit from the estate. 

Although not in the Supreme Court record, I think it a good assumption that at least some of the codicils reflected changes between the interests of the different beneficiaries and changes of who the executors would be; further, because the changes were by codicil, the beneficiaries could see the changes over time.  This seems supported by the court’s finding that the family had fractured, “charging each other with misrepresentation, fraud and deceit,” and the suit brought “to satiate their dissatisfaction and impatience.”

The Virginia Supreme Court dealt with a number of questions raised by different groups of beneficiaries:

• Does it matter if the contest was brought in good faith or with probable cause?  Not here.

• Does it matter if a contestant withdrew before the final order?  No, they still brought the contest.

• Does it matter if a beneficiary was a minor and the contest was brought by a representative?  No.

Of importance for estate planning, the Court interpreted the clause strictly by the terms used in the will:

The court is not concerned with whether an heir or a devisee receives the property of a decedent. The normal freedom of the owner to dispose of his property as he sees fit should not be curtailed unless the disposition violates some rule of law or is against public policy.

Used indiscriminately, a no-contest clause can create difficulties resolving genuine disputes (such as working through this series of documents or ensuring a fiduciary is handling matters correctly), can disincentivize compromise (once the suit was filed, all benefit was lost unless successful), and may result in a more severe penalty than desired.

In Virginia, no-contest clauses are still upheld on the exact language actually used, as described in Hunter v. Hunter (Va. 2020):

We have reconciled these competing values by stating that no-contest provisions are simultaneously “strictly enforced” and “strictly construed.”  By strictly enforced, we mean that we will enforce the provision without any wincing on our part concerning its alleged harshness or unfairness — so long as the testator or settlor clearly intended the forfeiture.  By strictly construed, we mean that the intent to forfeit must be very clear. .    

So, for instance, a grantor of an irrevocable trust with a no-contest clause who is also its sole beneficiary forfeits his rights as beneficiary if he challenges the trust trying to get his money back.  McMurtrie v. McMurtrie (Va. 2021, unpublished).

Much of the animosity between George Parramore’s family members seems to have come not from the litigation itself, but in recriminating each other over the application of the no-contest clause.  Ultimately, the only winner was Christ Episcopal Church in Eastville, which was probably not the result Mr. Parramore was hoping for.    If you are thinking of using a clause like this, discuss the details with an attorney who has seen how they have been applied in administration and litigation so you get the result you are looking for when the terms are “strictly enforced” and “strictly construed.”

Next in the Lessons From Litigation series: How to Prove a Deceased Person’s Claim

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.

Fiduciary Boot Camp: 7 Trustee Missteps to Avoid

by Jonathan A. Nelson

We recently talked about helpful steps to get started as a trustee.  Below are a few things to watch out for; getting them wrong can have big consequences.  Note that this list is going after the inadvertent or inexperienced mistakes, not intentional misdeeds.

1. Delay getting set up.  There can be a lot of paperwork and time needed in the early steps as trustee, especially dealing with financial institutions and sending notices.  The trustee is responsible for what happens to Trust assets if they aren’t promptly secured (including the bank account Shifty Eddie has a debit card to or the high-risk investments Uncle Fred talked mom into making).  Sometimes a little step – like getting family tree information – is needed for another time sensitive step, like mandatory sending of notices to the people on that family tree.  Delays can compound, so it is important to act early.

2. Inadequate document retention.  The trustee needs a good grasp on what he is managing and the ability to act quickly.  There are processes to follow and forms to submit.  There will be periodic tax requirements.  There may be (as is the case in Virginia) unwaivable obligations on the trustee to provide a lot of information to beneficiaries whenever requested.  These duties use information which can be relatively easy to provide if the trustee maintains his or her accounting information in good order, but which can be a nightmare to try and recreate down the road.  Worse, if the trustee can’t produce the required records (e.g., documentation supporting the expenses underlying a reimbursement to the trustee), the trustee may be liable for paying back the trust from his or her personal funds.

3. Hiding the ball.  Disclosures and notices are there for good reasons, and have an added benefit of helping the trustee communicate and build trust with the beneficiaries.  This is even true when working through inadvertent errors or mistakes – a trustee fixing something right away is often met with good will and avoidance or waiver of additional consequences.  Something as simple as obtaining authorization beforehand for a grey area (like selling an asset to a family member) usually helps the trustee keep the confidence of the beneficiaries.

4. Unauthorized disclosures.  The trust instrument gives the trustee his or her marching orders.  Sometimes this includes direction for information to be withheld or kept confidential.  A beneficiary’s spouse who is about to leave them may try to figure out what hasn’t been distributed yet; a beneficiary’s creditor may make aggressive threats even though the trust has a valid spendthrift clause.   The trustee must be aware of these instructions, because giving information improperly can make the trustee liable for beneficiary losses that come from that disclosure.

5. Mistiming transactions.  Even leaving aside timing for mandatory distributions, making things happen at the right time is important.  A few examples: Failing to distribute income or incur administrative expenses in the same tax year as the income it relates to can result in the trust having to pay unnecessary taxes.  Failing to get forms to beneficiaries early enough for them to file their own taxes can create problems for them individually.  Failing to take a fiduciary fee at the right time can lead to the trustee losing that fee.

6. Commingling assets.  Depending on the nature of the trust, there may be multiple subtrusts, business entities owned by the trust (for instance, an LLC holding a rental condo), other related trusts with the same trustee, or individual and estate accounts that are not in the trust.  Some of these can be held in a single account, others cannot, and all involve keeping the separate accountings up to date.  Even if money is needed to avoid losses in one subtrust (e.g., replace the roof on a house), it may not be as easy as just moving it from another account and calling it a loan.

7. Losing sight of the purpose of the trust.  The previous six missteps may sound like the job of a trustee is rigid, but this is the balance to that: one reason the living, thinking trustee is there is because not everything goes according to plan.  If the trust assumed there would be enough money to pay for college and to keep up the house, or didn’t anticipate a beneficiary’s mental illness, or faces an unanticipated tax bill because of a legislative change, the trustee may need to be proactive in seeking a modification of the trust to meet this new challenge.  Sometimes this happens through a court, sometimes by an agreement of the beneficiaries, and sometimes that power is granted to the trustee by the trust.  But in every case, the responsibility of the trustee is to look after the needs and interests of the beneficiaries, not just follow instructions.

Sound difficult?  It can be, and it is important to have the right legal and accounting advisors to guide you in understanding your state’s laws and your duties under the governing document. 

Next in the Fiduciary Boot Camp series: What are the “Fiduciary Duties?” Are They Different for Executors, Trustees, Conservators, or Custodians?

Virginia attorney Jonathan A. Nelson uses his extensive legal knowledge and trial experience to resolve conflicts, negotiate settlements, navigate compliance matters, and vigorously advocate in the courtroom in order to achieve the best possible outcomes for his clients. He practices in estate planning, probate, trust and estate administration, corporate law, and civil litigation related to these fields.

The attorneys of Smith Pugh & Nelson, PLC, offer the experienced counsel, personal attention, and customized legal services needed to address the many complex issues surrounding estate planning, probate, and trust administration. Contact us at (703) 777-6084 to schedule a consultation.