Trusts 101: Kinds of Trusts (Part 1)

by Jonathan A. Nelson

We have written in some detail in this series about using trusts for estate planning, with a particular focus on post-death planning.  But the concept of a trust is very useful in a lot of contexts.  What are some kinds of trusts, and what do some of the funny sounding names mean?  The following list is not exhaustive and is meant to be very high level.   Particular pieces may be treated in more detail in future posts.  Estate tax planning is a specialized enough field that the trusts associated with it will be discussed in a separate post as Part 2 of this topic.

What is a Trust?

 At the most basic level, a trust occurs any time a person (called the Grantor or Settlor) conveys an asset to a person (the Trustee) subject to terms that benefit a person (the Beneficiary).  Even though the Trustee has legal title to the asset, the law holds the Trustee to fiduciary duties (a high degree of ethical conduct discussed here), to ensure that the asset is used pursuant to the terms of the trust. The law also protects the asset from the Trustee’s creditors because it isn’t really the Trustee’s asset.

 A trust is not a legal person in the same way a corporation or an LLC is, however.  It can only sue or be sued in the person of the Trustee, and the death or incapacity of the Trustee can lead to automatic succession, whereas an LLC may require a member meeting or even go through probate if the succession is not established beforehand.

Trusts Outside Estate Planning

Trusts can be useful in many contexts.  In a divorce, a trust may be an effective way to make sure that college tuition or life insurance benefits the children without just giving money to the ex.  Most people buying a house will sign a Deed of Trust in which they irrevocably appoint a Trustee to keep them from defaulting on their mortgage by selling the house and paying off the bank if they do not make their own payments on time.  There is an interesting line of cases in Virginia dealing with that Trustee’s fiduciary duties to the homeowner, since the homeowner is both the Grantor and a Beneficiary of the trust.

 A small business may be more efficiently run if one active Trustee holds the voting power of a group of less involved shareholders.  (In fact, pooling voting power is so useful that Virginia allows a ‘Business Trust’ to register as a legal entity, in an exception to what I said about legal persons above.)  A ‘Land Trust’ holds land and can aid in conservation or land use management, governing a group of investors, reducing premature disclosures while development plans are in the works, or providing continuity for a particular operation like a farm.

Trusts for Asset Protection

One clause frequently used in trusts is a ‘spendthrift clause’.  This is a direction to the Trustee to prevent payment to a beneficiary’s creditors, and is important to protecting the trust from downstream anticipation of benefits invading the benefit (or asset) meant for the beneficiary alone.

Where the Grantor and the Beneficiary are the same person, however, the question is whether the trust can in fairness be interposed to avoid paying creditors.  Although self-settled spendthrift trusts can be created and used effectively, they are intentionally cumbersome and difficult to control to reduce the temptation for overuse.  For example, they usually need to be in place for five years before they provide any protection, and the Trustee must be true third party.

A particular application of this is the Medicaid Planning Trust.  Here, one’s assets are sufficiently removed from personal ownership and direct control in order to qualify for long term care through Medicaid.  For the reasons above, these are difficult to set up correctly and benefit from a high degree of attorney involvement in the creation and administration.  In addition, it is a lifestyle decision, and checking which local facilities take Medicaid before setting up such a trust may be helpful in deciding whether it will be advisable for you.

Trusts for Estate Planning

A trust can be created by a will (called a Testamentary Trust); in Virginia, these tend not to be used heavily since they occur inside probate and can significantly increase the time and expense of probate.

As hinted at above, the Grantor, Beneficiary, and even the Trustee can be the same person unless otherwise prohibited by law. This combination allows the major use of trusts as an estate planning tool – the revocable living trust whereby the Grantor retains essentially unfettered control of his or her own assets, but can still avoid probate with very little paperwork.  There are many variations possible.

A joint revocable living trust allows a married couple to create a unitary estate plan that is less dependent than individual wills on the happenstance of which spouse dies first.  For spouses with separate resources or beneficiaries, options exist on how those are treated in individual or joint trusts, and can include a Qualified Terminable Interest Property (“QTIP”) provision that provides care for a surviving spouse but not the ability to invade the eventual inheritance.

Some trust terms are self-descriptive.  A Trust for Minors is exactly that.  A Pot Trust holds family resources in a common pot for use according to need, in a sort of rough facsimile of your having lived longer, and it is only later that the unused portion is divided into individual shares.  A Pet Trust provides resources and oversight to ensure beloved animals live out their days in the manner you desire.  The term Legacy Trust tends to be used to describe a long-running trust, often holding assets through at least one generation, in an attempt to build wealth rather than facilitate spending, and the term Dynasty Trust typically refers to trusts holding assets for more than one generation, often (but not always) involving estate tax planning, discussed in the next post in this series.

Trusts Which Intersect With Estate Planning

Special Needs Trusts (sometimes called Supplemental Needs Trusts) are designed to keep challenged or medically vulnerable beneficiaries from being accidentally disqualified from the public benefits they may depend on.  If any of the beneficiary’s assets went into the trust, Medicaid can require reimbursement of lifetime expenses from the trust, so a special needs trust intended to administer an inheritance and then pass the unused portion to other family has to be careful about the sources of funding.

Finally, a Totten Trust is more commonly called a transfer-on-death or payable-on-death designation, but it involves the asset holder acting as a trustee for your instructions to transfer the asset as directed.

This post runs through a lot of detail quickly, but the most important thing to understand is that these tools are right for certain jobs, but there are no one-size-fits-all solutions.  Talking through the pros and cons with an experienced estate planning attorney will help make sure you are taking the correct steps to handle your assets in ways that best meet your goals, handle your foreseeable challenges, and benefit those you care about.

Next time in Trusts 101: Kinds of Trusts (Part 2)

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: The Litigious Family Member

by Jonathan A. Nelson

Four years ago, the Virginia Supreme Court described the course of the Galiotos family estate and trust matters as the “brothers’ prolonged disputes.”  Since that time, those brothers have gone through seven more appeals, two dealing with the distribution division and five dealing more or less with the various court orders attempting to sort out the parties’ litigiousness, the last having been ruled on this past week (October 21, 2025).

The point of this post is not to sort out the finer points of the Galiotos dispute, but to point out that when creating or updating your estate plan, it is wise to anticipate potential problems and take steps to reduce the opportunities for your family to be torn apart by the very decisions meant to benefit and bring them together.

       1.       Avoiding Grounds for Ill Will 

Every family situation is different – there are no one-size-fits-all solutions in estate planning.  Terms that are practical for an only child may cause problems among three siblings with varying expectations, and wholly wrong for an estate plan where extended family will try to exert control.

That said, sometimes the provisions themselves raise problems. In my experience, otherwise reasonable beneficiaries are more likely to involve attorneys and courts when the terms favor secrecy, insulate the trustee from accountability, give ambiguous or voluminous instructions making it difficult to assess whether the trustee has been faithful, excessively withhold input and control from beneficiaries, and provide insufficient flexibility for unanticipated situations and events.

The choice of a trustee is also very important. A trustee with an overbearing personality may harm relationships with beneficiaries; an indecisive individual can hamper the effectiveness and timeliness of your trust’s administration.  If that person is still your choice, you may need specific terms to ameliorate those tendencies.

       2.       The Known Litigious Person  

Sometimes people you care about are already contentious or litigious.  My experience is that avoiding this issue does no one any favors.  There are estate planning tools you can consider, from carefully crafted no-contest clauses to distributions conditioned on waivers to using third party fiduciaries.

For the documents themselves, it is particularly important that an estate plan not create easy opportunities for litigation.  This means there is often a premium on the documents being shorter to avoid terms open to interpretation. It may also mean forgoing complex provisions and lengthy administration in favor of dividing the pie and allowing each to go his or her own way.

It is also important, regardless of the other mechanisms used, for your estate planning attorney to create robust contemporaneous documentation showing your documents set out your wishes.

       3.       Recognize That Sometimes Court is the Only Option

The basis of the observation from Federalist Paper 51 that “if men were angels, no government would be necessary” is no less true in estate planning.  Regardless of the care in assembling an estate plan, any of the people involved could step over a line.  In that case, outside resolution (often through a court) may be the only means of correcting it. 

An estate plan is a balance of probabilities, but is best served when it includes accountability, appropriate tools for administering efficiency while encouraging faithfulness to you and your beneficiaries, and the means of dealing with the unexpected – even in the face of a beneficiary’s, fiduciary’s, or outsider’s greed, intractability, self-importance, or obstreperousness. 

Going back to the Galiotos family, one piece of the dispute involved a trustee brother refusing to turn over financial information about a business he had been running but which the court found the other brothers were to become partners in. The court ended up being the necessary remedy. It seems to me that an estate plan designed to shield that fiduciary from having to make such disclosures or from the court compelling the same would not be the right answer.

Addressing difficult topics in advance – especially with an attorney experienced in both estate planning and estate litigation – may be the best way to ensure your intentions are not subjected to “prolonged disputes.”

Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.

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.

Coming Post: Types of Trusts

by Jonathan A. Nelson

There are certain questions which do not keep me up at night, including:

— If Snoop Dogg was getting an estate plan, would it include a pot trust?

Estate planning attorneys sometimes use shorthand names like ‘pot trust’ for complex planning tools.  Curious what some of them are?  With summer over, stay tuned to this blog for this content and more in the coming months.

Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.

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: Reasons Not to Have a Will

by Jonathan A. Nelson

We wrote recently that there are times when a trust isn’t the best tool.  But are there times when you shouldn’t even have a will? 

 As one who is frequently counsel to the survivors, I want to say unequivocally, “Of course, everyone should have a will.”  But what reasons do I hear people give, and what do I think of those reasons?

 1.       “A will provides no benefit to me.”  Superficially, this is true – you have to die before a will takes effect, so what good does it do you?  Without going too deep into philosophy, a will makes sense for people who see themselves as part of a community that is larger than themselves, including the future community this legacy connects them to.  Thinking about how you want your assets distributed can be a useful exercise to assessing who and where your community is, or could be.

2.       “I have no obvious beneficiaries.”  In conjunction with the previous item, this may be a good time to think about the relationships you can build. Naming beneficiaries under a will is in your control, and can include friends and neighbors, particular extended family members, godchildren, your house of worship, and charities doing work you care about.  If you do not leave a will directing where your assets go, your state’s default provisions for descent of property may not be what you would have picked or may divide the estate in so many directions that administration of the estate becomes burdensome.

3.       “My life is too much in flux right now.” There is rarely an estate plan that will never need to change, and waiting for the right time runs a risk of “the right time” never coming along.  As life happens, sometimes the plan requires updates.  Occasionally we do prepare documents we know are temporary, but often who and what are important above all else don’t end up changing as much as people think, and putting in place provisions covering those while allowing for some contingencies is important planning.

4.       “My survivors will know what to do.” (or, “My survivors will do the right thing.”)  I have helped enough families through the estate process that I am just going to say it – if you want it done, write it down.  People misunderstand things, people have different opinions or assumptions from each other on what they think you would have wanted, and people may have memories of things said at different times that are not wholly consistent with each other or your current wishes.  Sometimes the unexpected means not all of the plan can be followed, and having a will with enough detail may be the only way to enforce what your highest priorities are.

5.       “Everyone is just going to fight about it anyway.”  There is a lot that can be done in a will (or other estate planning documents) to anticipate conflict and try to reduce the opportunities for strife to take root.  This requires an attorney willing to listen and able to find creative solutions, not just one who wants to fit the family into a prefabricated plan.

6.       “I don’t have enough assets.” With low enough assets, the will may not be needed for probate administration, but it can still be very helpful – if nothing else because it names someone to be in charge of the decisions that need to be made and to get the process started before unnecessary costs start depleting what assets there are.

7.       “Why write something if my creditors / back taxes / ex will take it all anyway?”  An estate you know will be insolvent can be one of the more difficult situations to plan through, and there are times when the best solution is for the named executor to walk away instead of qualifying.  However, it can still be prudent to give the right person the option of being in charge and seeing what can be done to help your loved ones, rather than just handing the reins to the creditors.

This list presumes a will crafted with reasonable skill – there certainly are times when a bad will is worse than no will at all.  But nearly without exception, even when there are minimal assets requiring administration, it is helpful to have a will naming someone to oversee decision-making. 

In summary, a will requires thinking beyond one’s own lifetime, and requires a certain humility and unselfishness to recognize the place one has in his or her community.  But it is an act of kindness to one’s survivors, and gives opportunities to impact one’s community and family in positive ways.  Taken as a whole, estate plan documents are a strong expression to your survivors of what your ultimate priorities are -- and that is worth a little thought.

Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.

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: Estate Planning Impacts of the One Big Beautiful Bill Act

by Jonathan A. Nelson

With the passage of H.R. 1, the reconciliation bill also known as the One Big Beautiful Bill Act, a few things look like they will impact estate planning and estate administration.  The bill is 870 pages long, including a 12-page table of contents, so this list makes no claim to being comprehensive.   Here is what I see immediately:

 1.       The piece with the biggest direct impact on estate planning is the bill raising the federal estate and gift tax exclusion to $15,000,000.00 per person in 2026 and adjusted to inflation thereafter.  This tax is about 40% of everything over that number, so, at least with the clients I tend to deal with, this change should make planning much more predictable for making sure family businesses and farms survive a death.  (Section 70106 of the bill.)

2.       ABLE accounts, for keeping assets from disqualifying individuals with disabilities from certain means-tested benefits, get a small increase in the amount of contributions which may be made each year, and the bill makes permanent that the amount will be inflation-adjusted.  The ability to roll 529 accounts into ABLE accounts is also made permanent.  (Sections 70115-17 of the bill.)

3.       529 plans can be used for more elementary and secondary school expenses, and the cap on peripheral expenses (such as computers) is doubled.  (Section 70413 of the bill.)

4.       Student loan liability which is discharged because of death or disability is now not taxable income.  There were some other exclusions for student loan forgiveness already in place which were made permanent, but this new provision can impact how estates are administered.  (Section 70119 of the bill.)

5.       Although not a new consideration, if there is a family-owned business which might end up in the hands of a foreign owner (such as a surviving spouse who has not become naturalized), special care will continue to be required, with some tax consequences now heightened.  (See generally Sections 70311, 70351, 70353).

6. There are a number of other changes to personal and business income taxes which may affect the tax returns filed by a personal representative for a deceased person, a business entity owned by a deceased person, or an estate.

7. Medicaid receives a number of changes to avoid unauthorized expenses; although this is unlikely to impact actual recipients, state Medicaid programs are now required to quarterly de-enroll people who have appeared on the Social Security Death Master File.  States will also not be reimbursed for payments they choose to make to persons not lawfully residents, which does stop short of an outright prohibition.  Medicaid recipients have already been allowed a certain amount of home equity before it makes them ineligible (so as to not create an additional housing need on top of a medical need), and the bill doubles that amount, consistent with home values generally rising faster than inflation.  (Sections 71104, 71108, and 71109 of the bill.)

8. Additional funding is allocated in furtherance of manned missions to Mars.  What does this have to do with estate planning?  Eventually, missions and tourism on Mars will give way to residency, which will grant a whole new opportunity to reuse or reinvent everything from property rights to inheritance.  As anyone who has read Andy Weir’s The Martian may remember, the treaty on space applies maritime law where there is no other governing law, which (unless addressed in future colonization law) could send probate back to the last place of residence on earth -- even if it means administering assets on another planet.  If negligence leads to the death, this could lead to the first (so far as I can tell) Death on the High Seas Act suit where the death occurred on land.  (Section 40005 of the bill.)

Besides these provisions, there are a number of regulations which will have to be changed over the next few years to reflect and adapt to these changes, but the passage of this bill highlights again the need to ensure estate plan documents and estate administration advice is based on up-to-date legal understanding.  If you have any concerns about how the bill may impact your estate planning or business interests, talk with an experienced estate planning attorney.

Virginia attorney Jonathan A. Nelson practices in estate planning, probate, trust administration, business formation, and estate and trust litigation, and brings nearly 20 years of experience resolving conflicts, negotiating settlements, vigorously advocating in the courtroom, and navigating compliance matters. He uses a personal touch and extensive legal knowledge to ensure that the particular needs and interests of each client are reflected in the legal services they receive.

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: What are the Fiduciary Duties?

by Jonathan A. Nelson

Estate planning has serious and weighty implications – the entire field has developed in recognition that everyone dies (and everyone does so with some unfinished business) and that even during life, people need others to step in during emergencies.  Because of these realities, it is expedient, and often necessary, to entrust to someone else - a ‘fiduciary’ - with the care of these matters.  That person is also a fallible human, however, and so regardless of whether they perform this role well or poorly, it is the principal or his beneficiary (and not the fiduciary) who is most affected.

 In recognition of this shift of risk, the law has developed the idea of ‘fiduciary duties’.  These represent the standards to which a fiduciary is held when managing and applying the assets of another, and accordingly also the degree to which that fiduciary will have to make the principal’s beneficiary whole in the event that duty is not followed.  What are these ‘fiduciary duties,’ and what do they look like?

 1.       The Duty of Loyalty. Loyalty in this context looks at whether the fiduciary is serving the interests of the principal (or beneficiary).  The Virginia power of attorney statutes codify one test as, “Does the action follow the principal’s reasonable expectations, if known, and his or her best interests if not?”  There are times that the fiduciary may also benefit, but a reviewing court will look dimly on self-serving actions which are not meaningfully and proportionally benefitting the person to whom this duty is owed.

2.       The Duty to Take a Reasonable Fee.  While in many ways a subset of the duty of loyalty, this is a frequent flier on the abuse list.  “Reasonableness” is based on the actual service provided, not the rate of the fiduciary when doing other tasks.  One local law firm found themselves in some hot water a few years ago for excessive fees in serving an incapacitated adult, including hourly billing of about $6,000 to sell a car for $4,000.

3.       The Duty of Impartiality. A fiduciary cannot play favorites between beneficiaries, especially when the fiduciary is one of the beneficiaries.  This can include distributing stocks which are performing at different rates, distributing assets with different capital gains tax basis, or giving the memorable but not particularly valuable tangibles to one beneficiary and the junk to the others.  This can become difficult where the beneficiaries are in different classes, such as weighing investment options where a lifetime beneficiary receives income and remainder beneficiaries may receive the value of unrealized growth.

4.       The Duty of Prudence. A fiduciary owes a duty to exercise care over the entrusted assets, and the standard is generally formulated “as great a care as an ordinary person shows for own assets.”  In practice, that translates to a bit more cautious an investment approach than some ordinary people would take, and the standard can vary based on the choice of fiduciary – a family member may not be held responsible for a low return on investment while an investment company serving as fiduciary may be examined much more closely for whether their investments are performing at the market level; similarly, an attorney may be held responsible for legal mistakes that a family member might not.

5.       The Duty to Inform. A fiduciary has to provide to beneficiaries sufficient information to understand and defend their interests.  Some specific information is required by statutes, but generally speaking, while the fiduciary doesn’t need further permission of the beneficiaries to administer the assets, he does need to let them know what he has done.

Some elements of these duties can be waived in the estate planning documents, but sometimes it is better to require a little extra in order to reduce friction or safeguard against foreseeable problems.  For an attorney drafting estate planning documents, it can be tricky to build a plan that balances the burden placed on a fiduciary with the anticipated benefit.  In the administration and litigation sides, more than in most areas of law, the presence of these duties allows the serious big-picture question of “Are you doing what is right?”

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: When Not to Use a Trust

by Jonathan A. Nelson and Christopher S. Woodruff

Trusts are rightly the centerpiece of many estate plans because they provide great tools for setting complex strategies, avoiding uncertainty for some matters where timing is important, and building in flexibility by deferring some decisions until they need to be made (even if after death).

But trusts aren’t right for everyone – sometimes they are more trouble than they are worth, sometimes the benefit doesn’t justify the expense of creating and setting them up, and sometimes they are the wrong tool for the job.  What are some indicators that a trust may not be advisable?  We have run into a few:

 1.       Straightforward assets: Whether the dollar amount is modest or the type of assets are as efficiently dealt with outside a trust, in some cases a trust simply does not add a lot of value.

2.       No need for significant contingency planning:  If a couple has one responsible 35-year-old child with no descendants and wants charities as the backup beneficiaries, the trust may not do a whole lot that can’t be done in other easier ways.

3.       High likelihood of major estate planning changes in future: To young parents, the most important aspect of estate planning is often selecting the guardian for their minor children, and this is done through a will. It is perfectly reasonable to have basic estate planning documents (wills, powers of attorney, and medical directives) put in place first, and, if not needed now, reconsider a trust down the road when more particulars of the assets and family needs are known.

4.       Cost: Trusts are labor intensive to create and maintain, and cost significantly more up front than wills. While trusts usually save money in the long run, some clients prefer for that money to be spent later in life or after they pass.

5.       Records won’t be kept or the trust won’t be maintained: Trusts generally require more lifetime work than other plans.  If a client’s personal strengths or lifestyle indicate leaving the paperwork to someone else would be more likely to meet the client’s goals, a trust may not be the best solution.

6.       Public oversight is preferable:  One of the usual upsides of a trust is its privacy and that any disputes are just between the parties to the trust, unless one of them asks a court to resolve something.  In some instances (such as where there are dominant personalities with a potential for abuse, beneficiaries without the means or ability to defend their interests in the trust, or conflicts already anticipated to boil over into litigation), that privacy may end up being counterproductive.  There are some creative solutions possible within a trust, but sometimes the court’s active oversight of probate meets the client’s goals better than avoiding probate.

7.       Significant creditor issues: An executor has powers to deal efficiently with creditors which a trustee does not.  Whether it is bad business debt, an unresolved dispute with the IRS, or difficulty paying student loans, sometimes the fact that the estate will require significant probate involvement to deal with creditors anyway means a trust will not add efficiency – or will add efficiency that benefits creditors rather than your family.

These are complex issues, and an attorney experienced in administering trusts and estates is invaluable in advising where you are – and aren’t – benefiting from sophisticated estate plans.

Next time in Trusts 101: Kinds of Trusts (Part 1)

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.

Christopher S. Woodruff is a member of the Virginia State Bar and has been licensed to practice law since 2016. Mr. Woodruff’s practice focuses on estate planning and the administration of trusts and probate estates. A passionate advocate for children and families, Chris brings extensive experience walking with people who are experiencing grief, trauma, and complex family situations. He provides patient, insightful, and tailored solutions to his clients.

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.

Leesburg, VA, Attorney Frank Pugh in the Wall Street Journal

by Jonathan A. Nelson

Sharp readers of the Wall Street Journal on Saturday, May 10, 2025, may have noticed our own W. Franklin Pugh quoted in an article on hidden pitfalls of transfer-on-death deeds.  Although such deeds are a useful and powerful estate planning tool, they have limits and there are times when they will not do what you hope or expect.  Whether they are right for you and how to go about implementing their use is a discussion you should have with your estate planning attorney.

The article (“When Leaving the House to Your Heirs Backfires” by Ashlea Ebeling) is available to WSJ subscribers or for purchase here.

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.

Leesburg Flower and Garden Week: Preserving a Hobby Garden

by Jonathan A. Nelson

As Leesburg, Virginia, prepares for Flower and Garden Week, and its 35th annual Flower & Garden Festival this weekend, it got me thinking about those projects we love and would enjoy handing down, such as putting in a special garden. 

What can you do to preserve a hobby or ideal beyond your lifetime?  A few ideas and options are below, with examples in the garden theme.

1.       Specific gifts: If someone shares your enthusiasm for a hobby, a simple way of seeing it continue is just to put it in that person’s hands.  This is easier to do with tangible items than real property, but a specific gift in a will might include, “To my nephew Sylvester, I leave my garden tools and seeds.”

2.       Manage over time with a trust: Placing conditions in a trust providing for the activity to be maintained (“The Trustee is directed to maintain my Heirloom Apple Orchard and authorized to spend $10,000 per year…”) can be effective, but it is also tricky to build the right motivations and enforcement mechanisms.

3.       Donor Advised Fund: If the passion is one that benefits from monetary gifts, a donor advised fund (“DAF”) can be an effective way to help your loved ones stay involved while also reaping tax advantages, with enacting language such as, “I set aside $500,000 to the Lee Family Public Garden DAF, for the purpose of making grants to charities installing or maintaining ornamental gardens on lands open to the public.” 

4.       Incorporate or establish a charity: While often the most involved option, setting up a for-profit operation as a continuing business with its own succession plan or establishing a charitable organization to maintain a particular operation or purpose can provide the most robust preservation.  These are often better equipped to ensure the continued success of a decorative pond installation business or preserve a historic farm than just leaving it in equal shares to your survivors.

5.       Nothing: Sometimes the steps for preservation are sufficiently difficult or would so detract from your present enjoyment that your lifetime happiness and memories from the activity are enough – for both you and your loved ones.

Planning, even for recreational interests, can be complex.  If you have a hobby you are interested in preserving, having a discussion about it with your estate planning attorney is the first step toward bringing it to fruition.

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: What About Online Wills?

by Jonathan A. Nelson

I have written previously about electronic estate plan documents.  Another question I sometimes get is whether wills drawn up through online sites or consumer software are legal.

 There are several layers to this answer, largely working backwards from what needs to be done with the document (and bearing in mind that these answers are specific to Virginia, although many states have analogous laws).

With regard to the legality of the will, there is not a lot of mandatory language for a document to be a will (I speak specifically as to Virginia, but this is generally true across the United States), other than there being a definite gift intended to take effect on death.  I have seen even this messed up in print-your-own wills, but it is the exception.

For the will to be admitted to probate and an executor sworn in, there are certain formalities for the signing of the document which go beyond mere notarization.  My observation is that notaries, while used to handling other kinds of documents, frequently make errors through inexperience with trying to administer a will signing.  Virginia has a “savings statute” (Va. Code § 64.2-404) that allows many flaws in the signing to be forgiven by a judge, but this requires filing a suit, and anyone who thinks they have an interest in the estate can object.  A recent example I was involved with required about $6,000 in litigation costs for a nearly unopposed matter because of the hoops that needed to be jumped through;  for contested matters, the bill goes up steeply. 

Even if the will is executed properly and admitted to probate efficiently, the software doesn't usually stop the user from making a mistake in the terms and language.  Problems with online wills I have seen include:

1.       Unfamiliarity with practicalities of the probate procedures that will apply, which may result in impractical administration, impossible gifts or failed gifts, or fiduciaries without the authority to act in a necessary or expected way;

2.       Passing assets in inefficient ways, whether this involves unnecessary probate, multi-step transactions that have tax consequences at each step, or depriving a fiduciary of the resources to maintain an asset;

3.       Failing to provide handling specific to these beneficiaries, including passing assets to minors or for the benefit of people with physical or mental limitations; and

4.       Unintentional omissions, because  the software won’t have a good way of asking you whether you thought of everything.  As one example, I was involved with an estate where the decedent used an online will program, incorrectly assuming that his widow would automatically be the first executor and he was just entering a list of alternates into the form.  Because he didn't list his wife at all as an executor, we ended up having to track down and get waivers from his sister, his mother, his college roommate, and a friend in New York he hadn't talked to in 20 years before she could qualify on the grounds of being a beneficiary.  

In the short term, writing a will with an online program may be convenient, quick, and sometimes less expensive; however, they frequently have speedbumps or full roadblocks between what they actually do and what you wanted, and fixing those problems can quickly cause significant expenses, delays, and inconvenience for your loved ones. 

Do attorneys sometimes make mistakes?  Yes.  But a personal relationship with an attorney experienced in probate and estate planning in your state and who knows your family’s needs reduces the probability, helps avoid the many pitfalls of estate administration, and provides results that are effective and sound.  Attorneys also have professional oversight that a website lacks. 

Many things in life can be fixed later, but a will is out of your hands after you are gone.

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.