Estate Planning

A recent survey revealed that only 1 in 3 American adults has an estate plan. Of those who do, 1 in 5 have not updated their plan in the last five years.

Lacking an estate plan, could lead to potential risks and uncertainties for their families. It’s essential to develop a plan that offers clear guidance and structure for your loved ones, reduces the likelihood of estate disputes, and simplifies the asset distribution process. Having the appropriate plan in place can make a significant difference.

Fortunately, we are here to assist those in Virginia who have not yet established an estate plan.

At Smith Trial Law, we possess the experience and expertise to help you explore various estate planning tools and documents. We will guide you through the process, creating a personalized plan that addresses your family’s specific needs. This approach provides peace of mind, knowing that your family will be well cared for long after your passing.

Our Estate Planning Services

Although every estate plan is unique, here are some of the key areas we focus on, including:

Creating a Will
Setting up a Trust
Medical Health Care Directives
Setting up Medical and
Financial Powers of Attorney
Creating Tax Benefits

The specific estate planning tools you choose should align with your personal objectives. For instance, young parents often establish trusts to manage assets for their children. Older couples may focus on healthcare planning, particularly concerning medical assistance or end-of-life care. Wealthy business owners might prioritize succession planning or asset preservation to minimize estate taxes and ensure more assets are passed on to their family rather than to the government.

Whatever your estate planning goals may be, the key to success is working with a skilled and experienced lawyer who can help you achieve them.

Contested Power of Attorney

A power of attorney is a document that grants legal authority to another party (agent). By executing a power of attorney, an individual can give the agent the authority to make legal decisions on his/her behalf. These decisions can involve financial, health and property matters. The execution of a power of attorney, while often essential and useful, can carry risks. A power of attorney in the wrong hands can be abused through self-dealing, embezzlement and other mishandling of funds. Can you contest a Power of Attorney in Virginia?

The short answer is yes on several fronts. When you suspect that there has been an abuse of a POA, it is vital that your matter is addressed by a skilled Virginia litigation lawyer. Cloyd has extensive experience in how to best take legal action when a power of attorney is being abused. He can quickly assess the situation and advise you on how to best move forward. As the health and financial security of the individual can be seriously compromised when the power of attorney is misused, it is critical that legal action is undertaken immediately if there is any wrongdoing or illegal activity taking place. Cloyd has litigated such abuse on the grounds of irregularity during the execution of the power of attorney, undue influence, incompetence and the misuse of authority granted in the power of attorney.

Partition Actions

Partition lawsuits are a form of litigation that seeks clarity from a judge on how to divide a piece of property that has multiple joint owners who cannot agree on whether to sell it or not. They can be part of a larger litigated divorce or estate and trust litigation. At Bristle Schulze, partition lawsuits are handled by a legal team led by attorney Cloyd Allen Smith, who has focused much of his legal career on litigating estate and trust cases for clients. His extensive experience in this practice helps us pursue partition lawsuits with confidence.

What Is A Partition Lawsuit?

The Commonwealth of Virginia’s legal code governs the right of co-owners of a property to seek relief if they would like to sell the property and cannot reach an agreement with the other co-owners. The court uses factors such as the appraised value of the property, any outstanding debts or liens related to the property, the land and buildings associated with the property, and the interests of all co-owners to determine a fair remedy. These remedies can include the sale of the property as a whole or partitioning it and selling one or more sections while leaving the ownership of the remaining property intact.

The need for a partition lawsuit is often instigated by estate planning documents or wills that are written in a way that is vague or has language in it that does not align with current circumstances. Many times, an elderly parent with adult children will leave a property to all of their offspring. One of those children may have taken up residence on the property, while the other children are eager to sell the property and reap the profits (or lighten their load from the responsibility for the property).

The key factor in deciding to file a partition lawsuit is the inability of all co-owners to come to a decision about the sale of a property (or part of it). Given the time and expense of litigation, attorney Smith may counsel a client to consider mediation to settle the matter. With attorney Smith as your representative during negotiations, you will have a determined, knowledgeable lawyer at your side. He is ready to take on the other property co-owners in the courtroom but can also use his trial skills and extensive understanding of Virginia estate and trust law to encourage an out-of-court solution that meets your needs.

What Are My Options In A Partition Lawsuit?

If your partition lawsuit proceeds to court, the judge will have three basic options to settle the disagreement. They are:

Division in-kind, where the court would order the division of the property so that parts of it may be offered for sale. This option depends on the type of property in question, if any land is associated with the main property and if there are other houses or outbuildings on it, the assessed value of the property, current debts outstanding and other factors. Some properties cannot be divided – for example, a single-family house with a small yard can’t be divided in this way.

Partition by allotment, in which the judge can award the property to one co-owner who wants to retain it, provided they pay the other co-owners for their share of the property. This solution works well when you have one co-owner strongly in favor of holding on to the property, but is more complex if two or more co-owners want to keep it.

Partition by sale results in the sale of the entire property. In this option, all co-owners are compensated for the sale, subject to the debts related to the property.

All three of these options involve intricate and sometimes confusing discussions of real estate law, how an estate plan was structured or any contractual agreements that might have been drafted between two or more co-owners. Our partition lawsuit attorney is well-equipped to help you prevail in the case, reaching an agreement that solves the disagreement and acknowledges the interests each co-owner has related to the property.

Why Should I Work With an Attorney On A Partition Lawsuit?

So much in a partition lawsuit hinges on the details of the case. The structure and language of the will, estate plan or trust, the type of property involved, previous issues with title or ownership, and local real estate ordinances can all impact how the case proceeds, as well as the best strategies for resolution.