Posts Tagged ‘Virginia’

Terminating Parental Rights

Saturday, January 2nd, 2016

I’ve had  a few people contact me recently because they either want to voluntarily relinquish their parental rights, or they want to terminate the parental rights of an absent father.  Trust me, I’m not picking on fathers but I’ve had the same question 3 times in the past 2 weeks and they all just happened to concern absent fathers.

First of all, the Courts in Virginia will not let anyone voluntarily relinquish parental rights.  If both parents agree that the father won’t be involved in the child’s life, and the mother is able to properly provide for the child, there is no reason to have the court involvement at all.  Just do it.  Most people agree that it is better for a child to have both parents involved in their life, but it is still a personal decision.

However, if the parents think that they can get rid of a father who can not afford to pay child support and then apply for TANF to support the child, that won’t happen.  And while the Courts themselves can terminate parental rights when a parent has been proven to be unfit, you can’t request that the Courts do so just because a parent has not been involved in the child’s life, and/or is unable to provide financial support.

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Online legal services — buyer beware!

Wednesday, July 30th, 2014

Anyone who does a little online research about making a will inevitably arrives at one or more websites that advertise “do-it-yourself” wills. These websites sell a form for just a fraction of the cost of hiring an attorney to make a will for you. When you think you know who you want to leave all of your stuff to when you die, it’s easy to think that the will you buy online is all you need.

However, a recent case from Florida reveals the limits of online legal forms and how they are no replacement for assistance from a well-trained attorney. In 2004 Ann Aldrich created her will using a product called “E-Z Legal Form.” In the will, she left her house, car, retirement account, bank account, and life insurance account to her sister. The will also stated that if Ann’s sister predeceased Ann, then Ann’s brother was to inherit all of the listed property. Ann’s sister did die before her, and left Ann real estate and cash. Unfortunately, the will didn’t say who was to inherit any of Ann’s property that she acquired after she made the will in 2004.

Furthermore, as often happens with  problems in wills and other estate planning documents, the problem wasn’t discovered until it was too late. When Ann died in 2009, there was a dispute about who would inherit the property Ann inherited from her deceased sister. Ann’s brother argued that Ann’s intent was for him to inherit everything – after all, he was the only one named in the will after the predeceased sister. But Ann’s nieces believed that because Ann listed the specific property for the brother to inherit, any property not specifically listed in the will should not be distributed through the will.

Although Ann left a note with her will that seemed to indicate her desire to leave “all of her worldly possessions” to her brother, the Florida courts determined that the note was not a valid codicil to Ann’s will. Therefore, because Ann’s will mentioned specific items of property and did not mentioned all of her property, then the property she acquired after 2004 passed by intestacy. Even though Ann did not provide any bequest to her nieces her will, under Florida intestacy law, they received a portion of Ann’s estate.

One of the justices of the Florida Supreme Court noted “that although this is the correct result under Florida’s probate law, this result does not effectuate Ms. Aldrich’s true intent.”

If Ann Aldrich’s will was contested in Virginia, it is likely that a Virginia court would reach the same result, since the laws regarding interpretation of wills in Florida are similar to the laws in Virginia.

What is troubling is that Ann could have saved all of this trouble by getting the advice of a competent attorney! Not only did Ann’s property go to people she didn’t intend to receive it, but it took nearly five years of litigation between family members that ultimately ended up in the state Supreme Court. As the court noted, Ann Aldrich’s estate serves as “a cautionary tale of the potential dangers of utilizing pre-printed forms and drafting a will without legal assistance. As this case illustrates, that decision can ultimately result in the frustration of the testator’s intent, in addition to the payment of extensive attorney’s fees—the precise results the testator sought to avoid in the first place.”

Kristina Beavers, Attorney at Law is a full-service law firm that helps clients create the estate plan they need to fulfill their wishes. A good estate planning attorney does more than just draft documents – she will meet with clients before and after creating their documents to make sure their documents will fulfill their intent, protect them, their beneficiaries, and their assets. A good estate planning attorney knows that no estate plan is “one size fits all” and knows just how to tailor the plan to every client’s needs.

If you have questions about your own estate plan, if you are concerned that a loved one’s do-it-yourself estate plan is not valid or inadequate for their needs, contact Kristina Beavers, Attorney at Law.

Can we just agree to change the child support amount?

Monday, December 2nd, 2013

I had a person in my office recently who said that he and the children’s mother had agreed to reduce the amount of child support he had to pay because he was laid off from his old job and his new job didn’t pay as much.  They even had a document that said the amount would be reduced, and it was notarized.  He thought their agreement would cancel the court order.

And then she took him to court for non-payment and he was charged with failure to comply with an order of the court which included a possible jail sentence of up to one year.

First of all, when the Judge issues that piece of paper telling you what to do… it is not a suggestion….it is not an example….it is not an ‘if you want to’ or ‘if you feel like it’.  It is an ORDER.  That means you have to do it or face consequences.

Secondly, having a document notarized does not make it more ‘legal’ than having a document that isn’t notarized.  Most of the time, a notarization just means that the person signing the document produced identification saying they were the person who’s name was on the document.  This may keep your girlfriend from signing your wife’s name, but it doesn’t make the document legal.

What they should have done was to go to court to file a motion to amend child support due to a material change in circumstances.  His change in employment status would probably have met the criteria for a material change, especially if both of them agreed.  Then the court would have recalculated the child support payment from the date of the petition.  You can also provide the court with a ‘Consent Order’ that says you agree to an amount even if that amount is different from the amount that would be calculated by the statutory guidelines.

Sure it takes time out of your day to go to court to get the amount changed….but it is probably worth it when you consider the amount of time you might be spending going to court on a show cause….and the possibility of going to jail!

If you have any questions about this or any other legal subject, please feel free to give us a call at 757-234-4650 or visit our website at http://www.BeaversLaw.com.

Can my spouse refuse to get a divorce?

Monday, November 25th, 2013

Sometimes I have people come into the office and they tell me that they want a divorce, but their spouse refuses.  Sometimes it is because of religious beliefs and sometimes just because they like things the way they are.  Or sometimes it is because the other spouse doesn’t want to share any of the marital assets.  And sometimes it is because the other parent thinks that staying together until the children are out of the house will be better for the children.

Whatever the reason, this is one version of a contested divorce.

In the past, one spouse could refuse to get a divorce, but that is no longer the case.  If one spouse wants a divorce, it will happen…eventually.  But it won’t necessarily happen quickly or inexpensively.

I’ve often seen a divorce take over 4 years to be completed and include numerous court hearings and very large attorney bills.

If you want to get a divorce, and your spouse refuses, you really need to have an attorney.  This is not a case you can handle on your own.

If you have questions about this, or any other legal subject, please feel free to contact the office at 757-234-4650 to schedule a consultation with an attorney.

I have my dead mom’s Power Of Attorney, can I sell her house?

Saturday, November 9th, 2013

I have had a few questions lately from people who say they have a Power Of Attorney for their parent and the parent recently died.  Usually, they want to know if they can use that Power Of Attorney to sell their parent’s house.

A Power Of Attorney allows the agent to do anything that the principal can do.  In the situation above, the child was named as the agent and the parent was the principal.

If we think about it logically, a principal can’t do anything after they have died, and that is exactly what happens with the Power Of Attorney.  It dies with the principal.

The next question is ‘what happens to the house?’  That would depend.

If the house was deeded with some sort of survivorship option, then the house would belong to the survivor automatically and would not be considered as part of the deceased’s estate.

If there was a Will, the Will would describe what would happen to assets in the deceased’s estate, including the house if that was part of the estate.

If there was not a Will, the statutes covering intestate (without a Will) division of property would control.  In Virginia, the house would then go to the legal heirs of the decedent.

The Virginia probate process is relatively easy in comparison to some other states.  You can contact the Clerk of the Circuit Court in the jurisdiction (city or county) where the deceased lived and the probate clerk can often be of great assistance.  Or, you can contact a probate attorney to help with the situation.

But remember that after the person dies, the Power Of Attorney terminates automatically and is no longer effective at all.  Having a complete Estate Plan can help eliminate this problem situation.

If you have any questions about this or any other legal matter, please contact the office at 757-234-4650 to schedule a consultation.