Where There’s (not) A Will, There’s A Way

By, Cecil Osborne, Elder & Disability Law Clinic Student, Fall 2023

The majority of Americans believe that estate planning is important, yet only one third of Americans have any sort of estate planning in place, whether that be a will or a power of attorney.[1] There are many reasons people haven’t created these documents, including a perceived lack of need, not finding the time to create one, and not feeling like they would have someone to advocate for them.[2] States have prepared statutes to address the assets of those that died without a will, and they also created plans for people that become incapacitated without a power of attorney or advanced medical directive.

The most well-known estate planning document is a will, which provides instructions on how a person’s assets should be distributed upon their death. In Virginia, if a person dies without a will, their assets will automatically go to their spouse. If there is no spouse, then to their children in equal parts. If they have no spouse or children, then to their parents. The state then keeps reaching out to see if the person has siblings, grandparents, cousins, until it can find a surviving relative to inherit the estate.[3]  If a person dies without a will, their estate could go to parents they have a estranged relationship with, or to children who haven’t called them in a decade, or to their sixth-cousin that they didn’t know existed. The courts will also appoint a person to act as the executor, who swears to follow the instructions for paying off any remaining debts and distribute the assets left in the person’s estate to the rightful heirs.[4] The distribution of the estates happens in a process known as probate, and it can add stress to an already busy and stressful process.

Some lesser-known estate planning documents include living wills and power-of-attorney. Living wills instruct doctors on how you would like to be taken care of if you were ever unable to state your wishes. This can include whether you would like to be kept on life support, certain medications to avoid, or even if you’d like to listen to music or have makeup done while in a coma. A person can also appoint a durable power of attorney for healthcare, or healthcare proxy, to act as their advocate.[5] States have created a hierarchy of who a person’s default surrogate decision maker can be, with less than half of states recognizing that “close friends” can make these decisions and only 11 states have developed a plan for “unbefriended” patients.[6] Financial power-of-attorney allows a person to appoint someone they trust to take care of their financial affairs while they’re unable to do so. If a person doesn’t appoint someone to address their financial affairs while incapacitated, the court will be forced to appoint someone to manage their affairs for them.[7] In this case, the person that the court would appoint is a guardian or conservator, and the process of appointing one can take between six and eight weeks. The process of appointing someone as a guardian is a lot more costly than creating a power of attorney, and involves petitioning the court, proving that a person cannot make decisions for themselves and a court hearing. A person would not be able to choose their guardian, nor would they have any say over the scope of their guardian’s power over their finances. Guardianships are also more restrictive than powers of attorney, and having one revoked can be a costly and timely process.[8]

The pandemic has made it more apparent that people need to prepare these types of documents, and even younger people are realizing the importance of getting their affairs in order.[9] While it can be difficult to think about the possibility of being unable to make decisions for yourself, it is an unfortunate reality for people, and being as prepared as possible can make a difficult situation easier for both you and your loved ones.

[1] Lorie Konish, 67% of Americans have no estate plan, survey finds. Here’s how to get started on one, CNBC (Apr. 11, 2022, 3:25 PM)

[2] Haven’t Done A Will Yet? AARP (Feb. 27, 2017); Maggie Germano, Despite Their Priorities, Nearly Half Of Americans Over 55 Still Don’t Have A Will, Forbes (Feb. 15, 2019, 10:45 AM)

[3] Va. Code. Ann § 64.2-200 (2020).

[4] Probate in Virginia, Va. Ct. Clerks’ Ass’n (2019)

[5] Advance Care Planning: Advance Directives for Health Care, Nat’l. Inst. Aging

[6] Power of Attorney, A.B.A., (last visited Nov. 19, 2023).

[7] Erica Wood, If There is No Advance Directive or Guardian, Who Makes Medical Treatment Choices?, A.B.A. (Oct. 1, 2015)

[8] Supra note 6.

[9] Supra note 1.