Changing your will


"waving goodbye to the sun" by author

“waving goodbye to the sun” by author

Like the tides, life does not stay the same from one moment to the next.  Changes may be sudden and immediate, like having children or selling your house, while others may happen gradually over time.  Chances are that if you have already written a will, changes in your life may not be reflected in what your final wishes were at the time.

There are two ways to make changes to a will:

  1. You can write an entirely new will.  A properly executed and witnessed will automatically supersede and replace all others before it.
  2. You can amend provisions of your will while leaving the rest of it intact.  This is called a “codicil,” and it is not a matter of simply crossing out and replacing items on the page.  A codicil must properly be witnessed and executed like a complete will for it to be effective (i.e., signed before two witnesses, and both witnesses signing in turn).  Any amendment that is not properly executed will be deemed invalid by a probate court.

A codicil may also be used to “revive” or reinstate a former  (“revoked”) will.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

Peace of mind on a piece of paper


"ducklings asea" by author

“ducklings asea” by author

Life is full of uncertainty.  People get married, kids are born, accidents and illnesses happen.  Death is an inevitable fact of life, and it can happen without warning.  And since we cannot take our possessions with us when we die, it is important to figure out well ahead of time how your assets will be distributed when the unthinkable happens.

A will is a statement (oral or written) that directs the disposition of your property after you die.  It becomes final when it is properly signed and witnessed, and it becomes effective after you die and when all probate procedures are met.

It is important to note that a will has no legal effect as long as the testator (the person who wrote the will) is still alive.

What you need to know before you write a will

Before you create a will, you have to gather necessary information.  This includes:

  • Beneficiaries and heirs — people or charitable organizations who will inherit your property.
  • Property (including where it is located and who is on the title) and debts.
  • Bequests — the names of people and specific property they will receive, and who will receive the property if they do not outlive you.
  • Residuary beneficiary — the person or people who will receive property you do not specify in the will.
  • Executor (and alternate) — the person or people who will be responsible for carrying out the will.
  • Guardian (and alternate) — person or people who will care for your children or dependents.
  • Provisions for disposition of your debts and funeral expenses.  Usually, this comes from the residuary estate (i.e., what is leftover after specific bequests of property).  Please note that will executions often take place after the funeral, so it may be prudent to take care of burial arrangements separate from a will.

Elements of a will

In order to be legally binding, a will must meet several basic requirements.  These are:

  • Legal age — you must be 18 in both DC and Virginia.
  • Testamentary capacity — also referred to as “of sound mind,” meaning you must have the sufficient mental capacity to create a legal will.
  • Intent to make the document or statement your will.
  • The will must be voluntary, without coercion or duress.
  • The will must properly dispose of your property.
  • The will should be written and witnessed by two other parties (though wills can be oral).
  • The will must be properly executed, per state law.  In DC and Virginia, this means that you must sign the will in front of two witnesses, and both witnesses in turn must sign as well.

PLEASE NOTE: There is no notary requirement for a will in either Virginia or DC.

Once your will is properly signed and witnessed, you should keep the original in s secure place, either in a safety deposit box, safe, or with your attorney.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

16 (plus DC) down, 34 to go


"equal justice...period" by author

“equal justice…period” by author

Today, Illinois Gov. Pat Quinn signed marriage equality into law, making his state the 16th to legalize same-sex marriage.  Religious groups have pledged to challenge the law in court, but barring any judicial setbacks, gay couple will be able to obtain marriage licenses starting on June 1, 2014.

Last week, Hawaii became the 15th state to adopt marriage equality when Gov. Neil Abercrombie signed it into law.  And in October, gay marriage became legal in New Jersey when Gov. Chris Christie dropped an appeal challenging a court ruling it constitutional in light of June’s Supreme Court’s decision invalidating the Defense of Marriage Act.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

Visitation (Virginia)


"duckling pool' by author

“duckling pool’ by author

An essential element of any child custody arrangement is visitation for the non-custodial parent.  Under the law, the parent who does not have physical custody is presumed to have visitation rights.  There are no recorded cases of a judge completely denying the right of visitation.

Ideally, visitation arrangements are worked out between the parents and ratified by the judge.  If the parties cannot agree, the judge will determine visitation based on what would be in the best interests of the child under the following guidelines in listed Va. Code § 20-124.3:

1. The age and physical and mental condition of the child, giving due consideration to the child’s changing developmental needs;

2. The age and physical and mental condition of each parent;

3. The relationship existing between each parent and each child, giving due consideration to the positive involvement with the child’s life, the ability to accurately assess and meet the emotional, intellectual and physical needs of the child;

4. The needs of the child, giving due consideration to other important relationships of the child, including but not limited to siblings, peers and extended family members;

5. The role that each parent has played and will play in the future, in the upbringing and care of the child;

6. The propensity of each parent to actively support the child’s contact and relationship with the other parent, including whether a parent has unreasonably denied the other parent access to or visitation with the child;

7. The relative willingness and demonstrated ability of each parent to maintain a close and continuing relationship with the child, and the ability of each parent to cooperate in and resolve disputes regarding matters affecting the child;

8. The reasonable preference of the child, if the court deems the child to be of reasonable intelligence, understanding, age and experience to express such a preference;

9. Any history of family abuse as that term is defined in § 16.1-228 or sexual abuse. If the court finds such a history, the court may disregard the factors in subdivision 6; and

10. Such other factors as the court deems necessary and proper to the determination.

While judges have never denied visitation rights, they do have the option of ordering supervised visitation if it is deemed necessary and in the best interests of the child.

Denial of visitation by the custodial parent is a violation of the custody order, and the non-custodial parent may petition the court to enforce it.  On the other hand, failure to return the child at the designated time has more serious potential consequences.  If the child is not returned within 48 hours, it may be considered an abduction.  If the abducting parent stays in Virginia, it is a Class 1 misdemeanor, punishable by up to 12 months in jail and up to a $2,500 fine.  If the abducting parent crosses state lines, it is a Class 6 felony, punishable by one to five years in imprisonment, or up to 12 months in jail and/or $2,500 fine.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut@prylaw.com

What is an “intrafamily offense?”


In a D.C. Civil Protective Order (CPO) case, the petitioner needs to prove that he or she was a victim of an intrafamily offense or act of violence.  Under § 16-1001(9) of the D.C. Code, “intrafamily violence” is “an act punishable as a criminal offense committed by an offender upon a person to whom the offender is related by blood, legal custody, marriage, having a child in common, or with whom the offender shares or has shared a mutual residence; or with whom the offender maintains or maintained a romantic relationship not necessarily including a sexual relationship.”

It is important to note that under this definition, an intrafamily offense must necessarily be a physical assault or battery, or something that can be prosecuted as a crime, like stalking.  This means that yelling or cursing at a child, family member, or spouse/partner, even if done repeatedly over a long period of time, probably will not by itself be enough for a judge to issue a CPO.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Presentation: Pendente Lite Orders in Virginia


This is a presentation on pendente lite (or temporary) orders in Virginia, which can be obtained while family law cases are being litigated.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com

Ore Tenus: The Divorce Hearing


"the original tweeters" by author

“the original tweeters” by author

You have  negotiated all of the support and child custody issues, divided all of your property to each spouse’s satisfaction, and filed all of the necessary paperwork with the court.  You are now at the end of the process, which in Virginia is called the ore tenus hearing.

In Virginia, many uncontested divorces can now be completed without ever setting foot in a courtroom.  However, there are situations where a hearing is necessary (for example, if the defendant spouse is absent and cannot be found).  Assuming there are no issues to be decided, the plaintiff can request the hearing any time after the defendant answers the complaint.

At an ore tenus hearing, the judge listens to testimony from the party asking for divorce and his/her corroborating fact witness.  These questions cover how long the parties have been living separate and apart without cohabitation and without interruption, whether there is intent to remain separate and apart, whether there are support/custody and property issues still in dispute, and if there is any hope for reconciliation.

If there are no issues in dispute, the hearing itself can tend to be less formal than the usual proceeding.  The corroborating witness may be allowed to be present for the petitioner’s testimony, and the questions are routine.  The entire proceeding usually lasts around 10 to 15 minutes, and when it is over and the judge signs the decree and the parties are officially divorced.

This blog is an advertisement for the Law Office of Philip R. Yabut, PLLC, and the information in this post is not to be construed as legal advice, nor does reading it form an attorney-client relationship. Please do not post confidential information in the comments section.

Philip R. Yabut, Esq. || 1100 N. Glebe Road, Suite 1010, Arlington, VA 22201 || (571) 393-1236 || pyabut01@gmail.com