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Richmond Virginia Estate Trust and Real Estate Lawyers

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Congratulations Mark Shepard!

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Commissioner of Accounts

On April 1, 2020 Mark Shepard will officially begin his service as the Commissioner of Accounts for the County of Henrico, Virginia. The residents of Henrico and all the persons who deal with the Commissioner’s office are very fortunate to have Mark leading that office. Since Mark and his longtime colleague, Jay Turner, joined together in private practice in 2016, Mark has served our clients effectively and with a commitment and level of service that will be missed by both the firm and our clients.

Prior to co-founding our law firm, Mark worked in the legal department of SunTrust Bank where he served as Group Vice President and managed a team of trust and estate attorneys. Prior to his tenure at SunTrust Bank, Mark was a partner in the Trusts and Estates division of the law firm of Williams Mullen. Before attending the George Mason University School of Law, Mark worked as a tax accountant at Arthur Andersen & Co. in Washington, DC.

Mark received his law degree from GMU in 1992, and his undergraduate degree in accounting from the University of Massachusetts, Amherst in 1986.

Estate Planning

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Having a current and proper estate plan in place is step one in making sure that your loved ones will not have the distraction and additional heartbreak that can follow when death occurs without a plan in place. Effective estate planning is, however, as much about lifetime planning as it is about taking care of your estate after death. For example, planning for incapacity and higher income tax rates are two areas of consideration. We represent and help families with “simple” estates and those with planning needs involving federal estate taxes, special needs, gift planning, or IRA distributions.

Planning steps with Turner Lumpkins & Blackwell

The planning process typically involves two meetings. At the first meeting we will discuss your estate planning objectives. We will review with you the operation of common estate planning documents, including wills, trusts, financial powers of attorneys and advance medical directives. In addition, we will discuss the options for selecting executors, trustees and other agents who are appointed by the various documents.  Where appropriate, we will also discuss estate and gift tax planning opportunities.  You will receive comprehensive estate planning recommendations, tailored to your specific goals and circumstances. At the conclusion of this initial meeting, your attorney will quote a fee for completing the recommended estate planning documents.

The second meeting is where you will sign your estate plan documents. Prior to that meeting we will prepare draft estate planning documents and email those to you for your review. After you review the documents, we will answer any questions you have and make appropriate changes, which can typically be accomplished via email or telephone. We can schedule a second meeting to discuss the documents in detail, if you feel that is needed. However, we find that most clients are prepared to execute the documents without an additional meeting. Once the documents are in final form, we will schedule a time for you to come in and execute the documents. We will provide a notary and the necessary witnesses needed to ensure all legal formalities are met. We will also guide you regarding any subsequent documentation you may need to fully implement your plan, including any recommended changes of asset ownership or of beneficiary designations.

Complete Planning

When you work with our law firm in your estate planning, we will typically engage, as needed, with your financial adviser, insurance agent, and your CPA in crafting their plan. A “complete plan” for our clients brings together the: 1) estate planning for property transfers at death, 2) income tax planning, 3) disability planning, 4) asset protection, and, where needed, 5) business succession planning.

“Future Proof” Your Planning

When you work with Turner Lumpkins & Blackwell for your estate planning, you will have a plan that is designed for varied possible, future events. Even though our representation of you ends when your plan is completed and delivered to you, it is important that you to stay in touch after the estate plan is completed. Particularly if you experience a significant life event (e.g., birth/adoption of additional children, death or divorce of a spouse, inheritance, serious health issues of a spouse or child, creditor issues of a spouse or child, etc.), we encourage you to contact us to see how such events may impact their estate plans. To that end, we extend an invitation to all prior estate planning clients to contact us when such events occur. As much as we would like it to be, estate planning is not a static process. We are prepared to help you keep your plan aligned with your circumstances and wishes.

Partition Law Changes

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House Bill 1605, passed by the General Assembly and approved by the Governor, changes the landscape for partition lawsuits in Virginia. Because existing Virginia law was not as bad as the proponents of the new law believed, the improvements to Virginia law are not as significant as proponents imagine. The changes will, however, add unwelcome expense to partition actions.

The new law brings to Virginia provisions of the Uniform Partition of Heirs Property Act, a project that the Uniform Law Commission began in 2007. According to a 2016 article on the American Bar Association’s website, the ABA’s Section of Real Property, Trust and Estate Law “helped convince the Uniform Law Commission to undertake [the UPHPA project] in 2007, … to address partition action abuses that have led to significant property loss.” The title of the 2016 ABA article give a glimpse of the concern of the ABA, “Restoring Hope for Heirs Property Owners: The Uniform Partition of Heirs Property Act.”

According to the Uniform Law Commission:

“The Uniform Partition of Heirs Property Act (UPHPA) helps preserve family wealth passed to the next generation in the form of real property. If a landowner dies intestate, the real estate passes to the landowner’s heirs as tenants-in-common under state law. Tenants-in-common are vulnerable because any individual tenant can force a partition. Too often, real estate speculators acquire a small share of heirs’ property in order to file a partition action and force a sale. Using this tactic, an investor can acquire the entire parcel for a price well below its fair market value and deplete a family’s inherited wealth in the process. UPHPA provides a series of simple due process protections: notice, appraisal, right of first refusal, and if the other co-tenants choose not to exercise their right and a sale is required, a commercially reasonable sale supervised by the court to ensure all parties receive their fair share of the proceeds.”

The 2016 ABA article details history of partition laws, and offers details that are well worth the time to read if the topic is of interest. Where I part ways a bit with the ABA on this subject is their blanket statement that over the past decades partition sales moved from an extraordinary remedy to an ordinary course of relief granted by courts. My experience does not support that such a shift has taken place in Virginia. Certainly there have been changes over the years, and in any area of law one can find instances where judges granted relief that maybe should not have been granted.

In my decades of practicing law in Virginia, an ordered sale has always been the option only available after less drastic remedies were affirmatively shown by the petitioner to not be appropriate. From current Virginia law, Va. Code § 8.01-83:

Va. Code § 8.01-83. Allotment to one or more parties, or sale, in lieu of partition.

When partition cannot be conveniently made, the entire subject may be allotted to any one or more of the parties who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to; or in any case in which partition cannot be conveniently made, if the interest of those who are entitled to the subject, or its proceeds, will be promoted by a sale of the entire subject, or allotment of part and sale of the residue, the court, notwithstanding any of those entitled may be a person under a disability, may order such sale, or an allotment of a part thereof to any one or more of the parties who will accept it and pay therefor to the other parties such sums of money as their interest therein may entitle them to, and a sale of the residue, and make distribution of the proceeds of sale, according to the respective rights of those entitled, taking care, when there are creditors of any deceased person who was a tenant in common, joint tenant, or coparcener, to have the proceeds of such deceased person’s part applied according to the rights of such creditors.

In cases I’ve been involved in, a partition sale is only ordered after the court is satisfied from the evidence that the property cannot be divided (partitioned), and that no owner or owners will accept the entire property and pay the other owners fair value for the other owners’ shares.

My understanding is that the Boyd Graves Conference stepped into action on this in the 2020 General Assembly, and worked to preserve the existing provisions in Virginia law that have long afforded protection for land owners. I am thankful for their efforts to keep in check the proponents who apparently wanted to “do something”… the skeptic in me suspects the motivation was more to be seen as aligned with a “good cause” and less with regard to what “fix” was needed and what the “fix” actually accomplished.

The new law will require, in most cases, an appraisal of the property. That is an acceptable, if not good, step – though in nearly all of my cases judges already required an appraisal (and an appraisal was always required if any party raised any question whatsoever about value. What I am disappointed to see in the new law is the requirement in the new 8.01-83.3:

If the court appoints commissioners pursuant to Article 11 (§ 8.01-96 et seq.), each commissioner, in addition to the requirements and disqualifications applicable to commissioners in Article 11, shall be disinterested and impartial and not a party to or participant in the action.

This provision is completely new, and in my view unnecessary. It will add an expense to partition lawsuits – an expense that of course will be borne by the owners of the property.

Agent’s Power to Gift

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On December 5, 2019 the Virginia Supreme Court issued an opinion involving the gifting authority of an agent under a power of attorney. The case name is Davis v. Davis.

Whether to allow an agent to make gifts of a principal’s property is an issue that I talk to my clients about when they are updating their estate plan. Current Virginia law, which was updated in July 2010 with the adoption of the Uniform Power of Attorney Act (UPAA), requires the power to gift be expressly stated in the power of attorney. In Davis, a case out of Wythe County, in 1993 after an accident left him a quadriplegic, a gentleman named Sam Dickey appointed his mother Agnes Davis as his agent under a durable power of attorney. This document was prepared before the UPAA; in his POA Sam gave his mother the power “to sell and convey any and all personal property and all real property [Sam] may own…”

In 2005, years after Sam had moved into an addition his mother built onto her house for him, Sam wrote a Last Will leaving some of his property to his mother and some to his brother and sister. Rae Mills, a woman who was an employee at the family farm, also provided care for Sam in the years after his accident. She moved into Sam’s home in 2010 to care for him. In May 2013 Sam became ill and was transferred to a nursing facility.

On October 1, 2013 Rae and Sam were married in a “closed-door” ceremony at the nursing home – Sam’s family was not aware of this marriage until Oct 15 when a friend of Agnes’ told her that she saw on social media that Rae had changed her last name. on Oct 25, Dickey “triggered a ‘code blue’ which indicated… he was in jeopardy of dying.” On Halloween, using the power of attorney from her son, Agnes transferred the bulk of Sam’s property – worth over $2 million, to herself.

Sam passed away on November 15, 2013. Sam’s brother, who was the executor in Sam’s Last Will, wisely asked the Wythe County Circuit Court for guidance as to whether mom’s transfers to herself were valid. The trial court found that the power of attorney authorized the gifts, thereby leaving nothing in Sam’s estate to pass by Last Will. Rae appealed to the Supreme Court.

The Supreme Court opinion included a detailed analysis of the common law (before the UPAA) and of the UPAA. The justices reversed the trial court and held that the power of attorney did not grant Agnes the authority to make gifts of her son’s property. The challenge for mom was she had to rely on the language “sell and convey”. She tried to convince the justices that “convey” meant gift. That, to me, was an uphill climb, especially against the UPAA requirement that, “[a] power of attorney document must expressly grant the authority to make gifts.” Va. Code § 64.2-1622(A)(2). Also, under Virginia case law, a gift by the agent to the agent, is presumptively fraudulent.

Choosing your agent and what powers to grant is an important decision when creating your power of attorney. Whether to permit that agent to make gifts, to third parties and/or the agent herself, is a another critical decision point. In some circumstances, the power to gift can be a huge positive, particularly in the context of long-term care planning.

Following the General Assembly

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As a practicing Virginia lawyer and a member of a local board of supervisors, my work tends to have me following the activities going on in the Virginia General Assembly at the start of each year. In years past I have occasionally posted here my thoughts on laws that caught my eye for one reason or another.

Fortunately, technology has made following the GA easier for all interested persons. You don’t have to physically come to Richmond and sit through committee meetings to stay fairly and timely informed as to the status of votes and bills moving through the legislature. Advocacy groups and news services have tapped into the availability of information to increase engagement by persons interested in specific issues and by the broader public following more generally the hot topics and issues.

I may still post something here that catches my eye, but for now I am posting links to resources that you should find helpful in following our state legislators.

Of course a quick web search will lead you to the dozens if not hundreds of advocacy groups with a website that explains the group’s positions and track Virginia bills of interest and how our legislators vote.