As we all know, questions concerning death and disability are sometimes difficult for many families to discuss. However, individuals must address these issues in advance to ensure that their family members are in a strong position to deal with illness and death. Consider these vital questions, for starters:
What will happen to my assets upon my death? If I suffer an untimely death, how will I provide for my spouse and children? Who do I wish to handle my financial and business affairs if I become mentally or physically incapacitated? Who do I wish to make my healthcare decisions if I am unable to do so?
While many people choose to ignore issues related to death and incompetence until it is too late, planning can ensure that an individual’s wishes are properly carried out – while avoiding disputes and administrative and decision-making dilemmas – at a time when there is an illness or death in the family.
Why Draft a Will?
Why should an individual endure the time and expense involved in having an estate planning attorney draft their will? First, if an individual wishes to have any control over the final distribution of their assets upon death, those decisions should be expressed in a properly drafted will. Without a valid will, the Virgin Islands law of intestacy provides a specific order of distribution. Consider this common example which illustrates several of the issues that can arise.
Assume John Doe, who was married to his second wife and had two children from a prior marriage, suffered an untimely death. If John did not have a valid will at the time of his death, Virgin Islands law requires that his wife receive one-third of his probate assets (which include all assets except assets held jointly with right of survivorship and life insurance and retirement plans passing to named beneficiaries), and that his two young children split the remaining two-thirds equally. How does this scenario potentially cause problems? First, John’s wife is only entitled to one-third of John’s inheritance, all of which may be necessary for the wife to live comfortably after John’s untimely death. Moreover, John’s current spouse and the children from the prior marriage will often disagree regarding the division and distribution of John’s assets. Such disagreements often lead to a contested hearing before the Family Division of the Superior Court. These issues could have been easily avoided if John had properly drafted a will.
Consider Your Children’s Best Interests
A question that should be addressed by parents is “Who will take care of minors if the parent or parents suffer an untimely death?” Without a properly drafted will, the Superior Court of the Virgin Islands, rather than the parents, will appoint a guardian to take care of any children and handle the assets passing to the children until they reach the age of 18. The Superior Court judge will make a decision based upon the testimony of other family members and friends, many of whom may have different thoughts regarding the best interests of the children. Additionally, the children will be able to receive their entire inheritance without any limitations when they reach the age of 18. However, by having a properly drafted will, the parent or parents can determine in advance who will care for their children and manage their children’s inheritance in the event of their untimely death, while also controlling the age at which each child will have unlimited access to their share of the inheritance.
Preparation for Illness or Incapacity
In addition to planning for death, families should also prepare for the possibility that a family member may become incapacitated, either physically or mentally. By executing a properly drafted Durable Power of Attorney, an individual can appoint the person they wish to handle their business and financial affairs in the event they are unable to do so at any time in the future. One can also appoint a person to make healthcare decisions on their behalf by executing a Healthcare Power of Attorney. This document allows you to provide instructions to your appointed agent regarding basic healthcare decisions such as approval or disapproval of certain medical procedures and treatments, and more difficult decisions such as whether to consent to the donation of tissue and organs and at what point life-sustaining treatment should be removed. Additionally, an individual who wishes to relieve their family of the burden of making life-sustaining treatment decisions in the event of his incapacity should consider making those decisions in advance by executing a Living Will.
Good estate planning will give you control over your affairs while in good health, continued control over your affairs in the event of physical or mental incapacity, provisions for your dependents in the event of your death or incapacity, and provisions for the efficient distribution of your assets upon your death. With the help of an estate planning attorney, you can ensure that your family is in the best possible position to deal with an untimely illness or death. By addressing such issues in advance, you will avoid both headaches and heartaches for you and your family members.
Daniel J. Gravel is an attorney at BoltNagi PC and Chair of the Firm’s Corporate and Estate Planning and Tax Practice Group. BoltNagi PC is a full service business law firm based in St. Thomas, Virgin Islands.