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Charlotte Amalie
Friday, August 19, 2022


Questions concerning death and disability are sometimes difficult for families to discuss. However, individuals must address these issues in advance to ensure that their family members are in a strong position to deal with illness and death. Consider these vital questions, for starters:
What will happen to my assets upon my death? If I suffer an untimely death, how will I provide for my spouse and children? Who do I wish to handle my financial and business affairs if I become mentally or physically incapacitated? Who do I wish to make my healthcare decisions if I am unable to do so?
While many people choose to ignore issues related to death and incompetence until it is too late, planning can ensure that an individual’s wishes are properly carried out — while avoiding disputes and administrative and decision-making dilemmas — when there is an illness or death in the family.
Why draft a will?
Why should endure the time and expense involved in having an estate planning specialist draft a will? First, if an individual wishes to have any control over the distribution of his or her assets upon death, those decisions should be expressed in a properly drafted will. Without a valid will, the Virgin Islands law of intestacy provides a specific order of distribution. Consider this common example which illustrates several of the issues that can arise:
Assume John Doe, who was married to his second wife and had two children from a prior marriage, suffered an untimely death. If Mr. Doe did not have a valid will at the time of his death, Virgin Islands law requires that his wife receive one-third of his probate assets (which include all assets except those held jointly with right of survivorship and life insurance and retirement plans passing to named beneficiaries), and that his two young children split the remaining two-thirds equally.
How does this scenario potentially cause problems? First, Mr. Doe's wife is entitled to only one-third of the inheritance, all of which may be necessary for the her to live comfortably after his untimely death. Moreover, Mr. Doe's current spouse and the children from the prior marriage will often disagree regarding the division and distribution of his assets. Such disagreements often lead to a contested hearing before the Probate Court. These issues could have been easily avoided if John Doe had properly drafted a will.
Consider your children's best interests
A question that should be addressed by parents is "Who will take care of minors if the parent or parents suffer an untimely death?" Without a properly drafted will, the Territorial Court, rather than the parent or parents, will appoint a guardian to take care of children and handle the assets passing to the children until they reach the age of 18.
The Territorial Court judge will make decision based upon the testimony of other family members and friends, many of whom may have different thoughts regarding the best interests of the children. The children will be able to receive their entire inheritance without any limitations only when they reach the age of 18.
However, by having a properly drafted will, the parent or parents can determine in advance who will care for their children and manage their children's inheritance in the event of their untimely death — while also controlling the age at which each child will have unlimited access to his or her share of the inheritance.
Preparation for illness or incapacity
In addition to planning for death, families should also prepare for the possibility that a family member may become mentally or physically incapacitated. By executing a properly drafted Durable Power of Attorney, individuals can appoint whomever they wish to handle business and financial affairs in the event they are unable to do so at any time in the future.
By executing a Healthcare Power of Attorney, they similarly can appoint a person to make health-care decisions on their behalf. This document allows you to provide instructions to your appointed agent regarding basic health-care decisions such as approval or disapproval of certain medical procedures and treatments, and decisions such as whether to consent to the donation of tissue and organs, and at what point life-sustaining treatment should be discontinued.
Additionally, individuals who wish to relieve their family of the burden of making life-sustaining treatment decisions in the event of their incapacity should consider making those decisions in advance by executing a Living Will.
Good estate planning will give you control over your affairs while in good health, continued control over your affairs in the event of mental or physical incapacity, provisions for your dependents in the event of your death or incapacity, and provisions for the efficient distribution of your assets upon your death. With the help of an estate planning specialist, such as the attorneys at Tom Bolt & Associates, P.C., you can ensure that your family is in the best possible position to deal with an untimely illness or death. By addressing such issues in advance, you will avoid both headaches and heartaches for you and your family members.
For further information on wills and estate planning, see www.vilaw.com.

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