Monthly Archives: April 2015

Use Checklists to Avoid a Will Dispute

One of the easiest steps that an estate planning attorney can take to try to prevent a will that he drafted from being challenged is to have the witnesses to the will utilize a checklist in order to create a documented record that they observed that the testator had adequate testamentary capacity. First some background: in order for a will to be valid, the person executing the will (often referred to as the “testator”) must have “testamentary capacity” (which, in most states, is defined as the adequate mental ability to understand his family, his property, the fact that he’s making …

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Ruling Highlights the Need for Testamentary Intent for Holographic Codicil

Last month, the Fairfax, Virginia Circuit Court issued a written opinion that, while it does not break new law in Virginia, illustrates how a writing must demonstrate “testamentary intent” to qualify as a valid holographic codicil. First, some background: Virginia law provides that: “A will wholly in the testator’s handwriting is valid without further requirements, provided that the fact that a will is wholly in the testator’s handwriting and signed by the testator is proved by at least two disinterested witnesses.” Va. Code § 64.2-403(B). Such a will is called a “holographic will”.  This code section creates an exception to …

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Trustees Should Avoid Bitcoin

As bitcoin becomes increasingly popular, some are starting to ask: should trustees of trusts invest a portion of trust assets in bitcoin? There are very strong reasons why they should not. As I explain below, investing in bitcoin, in most circumstances, could put a trustee at risk of violating the Uniform Prudent Investor Act. First some background: for those unfamiliar with bitcoin, Wikipedia provides a helpful overview: Bitcoin is an online payment system invented by Satoshi Nakamoto, who published his invention in 2008, and released it as open-source software in 2009. The system is peer-to-peer; users can transact directly without …

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Posted in Fiduciary Duties, Prudent Investor Act \ Comments Off on Trustees Should Avoid Bitcoin