Articles

Secure your Last Will & Testament

April 16, 2017 By John Lumpkins Leave a Comment

The Virginia Supreme Court clarifies the burden in cases of lost original Last Wills.

An original Last Will and Testament is needed when a person goes to the Circuit Court Clerk to probate a will. Courts can accept a copy, but before the court will probate a copy the person presenting a copy must overcome a presumption that the original was destroyed by the testator with the intent of revoking the Last Will. Additionally, that presumption of revocation can be overcome only by “clear and convincing” evidence that the testator did not revoke the Last Will.

On June 4, 2015 in Edmonds v. Edmonds, the Virginia Supreme Court upheld an Arlington County trial court decision finding that the proponent of a copy of a Last Will proved that the Will was not revoked. In Edmonds the decedent was survived by his second wife, a daughter by that marriage, and a son by a prior marriage. When he died in 2013 his original Will, done in 2002, could not be found. In that 2002 Will he had not left anything to his son. His son challenged the widow’s efforts to probate a copy of the 2002 Will, and after the trial court held in widow’s favor the son appealed to the Virginia Supreme Court. The son argued that in order to meet the clear and convincing standard of proof, the wife needed to prove the cause of the disappearance of the Will (a cause, of course, other than the testator destroyed the Will). The Supreme Court rejected this argument and made it clear “that it may very well be impossible for the proponent of a missing will to explain what happened to the will, and therefore the statements of the testator regarding his testamentary intentions may be the best evidence to rebut the presumption of revocation.”

The Edmonds case should block future arguments that a proponent of a copy of a Will must prove what happened to the original Will, but the “take-away” from the case is a reminder to safely and securely store your original Last Will and other estate plan documents, and provide instructions and access only to those persons you trust completely.

Business Law and Counsel

April 16, 2017 By John Lumpkins Leave a Comment

From business startup through growth to sale.

As small business owners ourselves, we know first-hand how numerous and varied the demands can be. When you have us evaluate a business challenge, we take the time to understand your business and focus our efforts in promptly and effectively addressing the legal need, so you are not pulled from fully focusing on running your business.

All business owners, whether operating a startup or managing a well-established operation, will periodically need help navigating through today’s complex laws and rules. Our law firm helps guide business clients who are starting out with entity selection, drafting of operating agreements, partnership agreements, contracts, State Corporation Commission filings, license applications, and the myriad of other tasks involved in forming and starting a business in Virginia. We also regularly represent owners in the sale of their business.

Working with you CPA and other advisers, we can help you make the most of the benefits available under Virginia and federal law. Our firm can help whether you’re a sole proprietor looking to add protection for your personal assets from business liabilities, or you are in a group of individuals building a new enterprise. If you need to form a limited liability company, a partnership, corporation, we can help you on your way with reasonably priced corporate legal services.

Registered Agent Services

Attorney John Lumpkins also serves as the Virginia registered agent for many of our business clients.

Fee Schedule for Virginia Registered Agent Services

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When legal issues arise during business operations – from contract reviews to a collection matter – we are here to help. John Lumpkins has years of experience as in house corporate counsel; he can spot issues and guide clients in a range of matters from basic employment issues to intellectual property questions. For these specialty areas, when appropriate we will identify and manage other counsel whose practice focuses on these areas, such as trademark or employment law.

The current political and economic environment suggest there will continue to be pressure on leaders in Washington and in statehouses to find revenue sources. Business owners should be prepared for economic and financial challenges and opportunities in the years ahead. Our law firm works in concert with our clients’ CPAs and financial advisers to help address your business challenges and needs.

Probate Administration

April 16, 2017 By John Lumpkins Leave a Comment

Are you concerned about the estate of a loved one or a friend? Would you like guidance on estate or trust administration from an experienced team of lawyers? Do you have questions about the probate process in Virginia? The lawyers at Turner Lumpkins & Blackwell, PLC have years of experience representing Virginia executors, beneficiaries, and creditors of estates. We have an experienced legal assistant on staff who helps clients with the preparation of the inventory, accounts and other filings that must be made with the Commissioner of Accounts.

Virginia Estate Administration Process

Being an Executor in Virginia—Items to Consider Before Serving

The estate administration (probate) process is the process of transferring property from a decedent to his or her heirs and beneficiaries. In Virginia, the laws and the system in place make the process straightforward in most cases. The personnel in the Circuit Court Clerk’s offices in Virginia’s cities and towns are knowledgeable and helpful in the qualification process. The Clerks, however, do not give legal advice, and details can be easily overlooked in the nature of the assets that the decedent owned.

When a family member or friend dies, either testate (with a will) or intestate (without a will), a lawyer with our law firm counsels the fiduciary (whether an administrator, executor, curator, or even a trustee) through the entire qualification and probate process. We also represent beneficiaries and creditors who want to understand their rights and options during the probate process.

The Fiduciary Role

The word “fiduciary” is from the Latin, fiducia, meaning “trust”. In the law a fiduciary is a person or business in a role where the law recognizes them as having a heightened duty of good faith and fidelity to another. An agent under a power of attorney, an executor, an administrator, a curator, and a trustee are all fiduciaries under Virginia law.

We regularly help executors and administrators navigate the Virginia probate process. Key details can sometimes be overlooked by the inexperienced executor. For instance, if an estate is insolvent Virginia and federal law have priorities as to what of the decedent’s debts are paid and in what order. Failure to follow the priority can result in personal liability for the executor or administrator. We have seen estates where executors failed to determine whether a jointly owned account was owned as tenants in common or with rights of survivorship. Administrators also must recognize the significant income tax ramifications of the 401(k) or retirement plan that did not have a beneficiary designated. The lawyers at Turner Lumpkins & Blackwell can help you avoid costly missteps.

Remember, if you are an executor or administrator, you have a fiduciary duty to the beneficiaries of the estate. You must act in their interests. But you also have obligation to the creditors of the estate. Virginia law, Va. Code § 64.2-5280, sets forth priorities of what an executor may pay in the case of an insolvent estate. Federal law, 31 U.S.C. § 3713, dictates that claims of the U.S. government must be paid first when an estate is insolvent – and it establishes personal liability for the executor if other claims are paid instead.

We also provide counsel to trustees and work closely with CPAs and financial advisers in making certain that the trustee understands and follows Virginia’s Uniform Trust Code and the applicable standards of investment in the trust agreement or Virginia’s Prudent Investor Rule. For clients involved in a more complex estate my involvement will be consistent with the needs of the estate or trust. Most estate and trust documents anticipate more work being done by the professional advisers to the fiduciary, and certainly the courts and the Commissioner of Accounts expect and welcome the good counsel.

Hire an Experienced Law Firm

Our lawyers’ experiences and services include many years representing clients in common estate administration situations, and also in situations when an heir or beneficiary has been wronged by a fiduciary; when an administrator needs to petition a court for the power to sell real estate; or when a will – perhaps holographic (handwritten by the testator) – is unclear and requires a court to provide the executor aid and guidance in construing its terms. We counsel trust beneficiaries and trustees in administration of revocable living and testamentary trusts.

If the Circuit Court’s intervention is necessary in the administration of an estate, the lawyers at Turner Lumpkins & Blackwell help our clients seek redress for a wrong, secure the power to sell real estate, petition a court to interpret an unclear will or to terminate a trust (called a suit for aid and guidance), or any of the other of myriad issues that clients may face in the administration of an estate or trust.

Virginia Small Estate Act

For the genuinely “simple estate” we will offer a flat fee arrangement, typically under $1000, to do such things as evaluate the estate, answer questions, explain to the executor the probate process, and determine whether the estate is eligible for streamlined administration via Virginia’s Small Estate Act. As part of a flat fee agreement, we can be “on-call” to answer questions during the process and assist as appropriate in helping the executor settle the estate.

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Real Estate Law

April 16, 2017 By John Lumpkins

Since 1989, Turner Lumpkins and Blackwell partner John Lumpkins has helped thousands of individuals with their real estate and title insurance needs. From acquisition of small commercial properties to the partition of a parcel with over seventy owners, our firm is prepared to help our clients in some very unique situations.

The firm frequently represents individuals and businesses in the sale of real estate – including short sales, the sale or acquisition of commercial real estate, commercial and residential leases, partition suits, boundary line disputes, access/easement issues, sale or management of real estate by executors, trustees and other fiduciaries, and the sale of real estate of incapacitated adult persons.

Recent challenging projects include bringing a partition suit for an individual who received from a trust a partial interest in a large parcel of land. Our firm represents landlords in collection and eviction (unlawful detainer) actions and commercial tenants in disputes with landlords. We also work with our clients and small business lenders in helping our clients acquire their own buildings.

For residential purchase closings we can refer you to an affiliated, licensed settlement and title agency that operates out of our satellite office on Monument Avenue, near Willow Lawn. That company is RVA Real Estate Settlements, LLC.