THE MEDICAID ELECTIVE SHARE TRUST: KEEPING YOUR CLIENT ON MEDICAID WHEN THE COMMUNITY SPOUSE DIES FIRST By: Evan H. Farr, CELA, CAP1 Farr Law Firm, A Professional Corporation www.FarrLawFirm.com | www.LivingTrustPlus.com | www.EverythingElderLaw.com
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Contents 1. Introduction...... 4 2. No Distinction for Decedent who Leaves Children in Addition to a Surviving Spouse...... 4 3. Elective share dependent on length of marriage ...... 5 4. Augmented Estate Now Includes More Assets of the Surviving Spouse...... 6 5. Surviving Spouse May Claim Homestead Allowance, Family Allowance and Exempt Property Allowance in Addition to Elective Share...... 7 6. Failure to Claim the Elective Share is Failure to Assert an Inheritance Right...... 7 7. Failure to Claim the Elective Share is Penalized...... 7 8. Prior Efforts to Avoid Having to Claim the Elective Share...... 8 9. Does the New Statute Allow us to Avoid Having to Claim the Elective Share? ...... 9 10. New Provision for Elective Share Claim to be Made by Agent...... 9 11. Key Statutory Trust Provision for the SEST...... 10 12. How to Make a Proper MEST – Ensuring the Elective Share Trust Does Not Disrupt Medicaid...... 11 13. Will a Forced Testamentary Trust Work? ...... 13
1 A portion of this outline was originally prepared by Margaret A. O’Reilly, CELA, [email protected], for the VAELA 2018 UnProgram. Thanks to Peggy for allowing me to use and adapt her materials. ABOUT THE AUTHOR
Evan Farr, Certified Elder Law Attorney, is the creator of the Living Trust Plus™ Asset Protection System used by dozens of Estate Planning and Elder Law Attorneys around the country, and is widely recognized as one of the foremost experts in the Country in the field of Medicaid Asset Protection and related Trusts. Evan has been quoted or cited as an expert by numerous sources, including the Washington Post, Newsweek Magazine, Northern Virginia Magazine, Trusts & Estates Magazine, The American Institute of Certified Public Accountants, and the American Bar Association, and has been featured as a guest speaker on numerous radio shows, including WTOP and Washington Post Radio.
Evan has been named by SuperLawyers.com as one of the top 5% of Elder Law and Estate Planning attorneys in Virginia every year since 2007, and in the Washington, DC Metro Area every year since 2008. Since 2011, Evan has been named by Washingtonian Magazine as one of the top attorneys in the DC Metropolitan area, by Northern Virginia Magazine as one of the top attorneys in the Northern Virginia area, and by Newsweek Magazine as one of the top attorneys in the country.
AV-Rated by Martindale-Hubbell and listed in Best Lawyers in America, Evan is a nationally renowned Best-Selling author and frequent educator of attorneys across the U.S. As an expert to the experts, Evan has educated tens of thousands of attorneys across the country through speaking and writing for organizations such as his own Elder Law Institute for Training and Education, the National Academy of Elder Law Attorneys, the American Law Institute and American Bar Association, the National Constitution Center, the National Business Institute, myLaw CLE, the Virginia Academy of Elder Law Attorneys, the Virginia Bar Association, Virginia Continuing Legal Education, and the District of Columbia Bar Association. His publications include 4 Best-Selling books in the field of Elder Law: the Nursing Home Survival Guide, which provides valuable information and guidance to families dealing with the possibility of nursing home care and struggling to make the best decisions for themselves or their loves ones; Protect & Defend, which Evan authored along with a host of other top attorneys across the country; and How to Protect Your Assets From Probate PLUS Lawsuits PLUS Nursing Home Expenses with the Living Trust Plus™, and his latest book, Protecting Your Assets from Probate and Long-Term Care: Don’t Let the System Bankrupt You and Your Loved Ones. In addition, Evan has authored scores of articles that have appeared in the popular press, and dozens of scholarly publications for the legal profession, including two legal treatises published by the American Law Institute in conjunction with the American Bar Association: Planning and Defending Asset Protection Trusts and Trusts for Senior Citizens.
Note: This outline was last updated December, 2018. Laws change frequently. This outline is intended provide general education and assistance to attorneys, who will rely on this material only at their own risk. The author and publisher expressly disclaim (i) all warranties, express and implied, including, without limitation, of merchantability and fitness for any particular purpose, and (ii) all other responsibility for all consequences of use of this material. This outline is intended to educate and assist readers, but does not constitute legal advice. Readers should consider carefully the applicability and consequences of using any planning technique. The writer and publisher expressly
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disclaim (I) all warranties, express and implied, including, without limitation, of merchantability and fitness for any particular purpose, and (ii) all other responsibility for all consequences of use of this material.
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1. Introduction.
The 2016 Session of the General Assembly made significant changes to the elective share and augmented estate statutes, both procedural and substantive. These changes grow out of the 2008 revisions to the Uniform Probate Code, which brought elective share law “into line with the contemporary view of marriage as an economic partnership.” The UPC revisions, in turn, were intended to incorporate the equitable distribution system applied in both common law and community property states when a marriage ends in divorce. Under the current law, the elective share reflects the assets of both spouses as well as the length of the marriage, in an effort to arrive at an equitable distribution to the surviving spouse. The current Article 1.1 (Sections 64.2-308.1 through 64.2-308.17) applies to decedents dying on or after January 1, 2017. This article will present the major changes that the new Article 1.1 brings to existing Virginia law, and the effect that these new changes have on Medicaid Retention Planning if the Community Spouse dies before the Medicaid Recipient spouse.
2. No Distinction for Decedent who Leaves Children in Addition to a Surviving Spouse.
A. Prior Law – Surviving spouse was entitled to one-third of the decedent’s augmented estate if the decedent left surviving children/descendants, or one-half of the decedent’s augmented estate if the decedent left no surviving children/descendants. Virginia Code §64.2-304 (These provisions are effective for decedents dying on or after October 1, 2012. Before that date, children were only considered if they were children of the decedent who were not also children of the surviving spouse. Virginia Code §64.1-16.) B. Current Law – The surviving spouse is entitled to 50% of the value of the marital- property portion of the augmented estate, which is defined according to the length of the marriage, regardless of whether the decedent left surviving children/descendants. Virginia Code §64.2-308.3(A). This “marital-property portion of the augmented estate” is a new factor in computing the elective share, introduced by the new statutes.
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3. Elective share dependent on length of marriage
A. Prior Law – The surviving spouse is entitled to one-third of the augmented estate if the decedent left surviving descendants, or one-half of the augmented estate if the decedent did not leave surviving descendants. No other factors are considered. B. Current Law – Disregards the presence of children, and adds an additional calculation: The surviving spouse is entitled to 50% of the marital-property portion of the augmented estate. This marital-property portion of the augmented estate is a percentage of the augmented estate, determined by the length of the marriage. Calculation of the augmented estate is somewhat changed, and somewhat clarified, by the new statutes. Once the augmented estate is calculated, a separate calculation is done to determine the marital-property portion of the augmented estate. The elective share is then determined as 50% of that marital property portion. The augmented estate is calculated first, by adding together the value of the decedent’s net probate estate, the decedent’s non-probate transfers to others, the decedent’s non-probate transfers to the surviving spouse, and the surviving spouse’s property and non-probate transfers to others. The sum of those values (the augmented estate) is then multiplied by a percentage that is based on the length of the marriage, to determine the value of the marital- property portion of the augmented estate. Virginia Code §64.2-308.4. Length of marriage Percentage multiplier Less than 1 year 3% 1 year but less than 2 years 6% 2 years but less than 3 years 12% 3 years but less than 4 years 18% 4 years but less than 5 years 24% 5 years but less than 6 years 30% 6 years but less than 7 years 36% 7 years but less than 8 years 42% 8 years but less than 9 years 48% 9 years but less than 10 years 54% 10 years but less than 11 years 60% Medicaid Elective Share Trust Page 5 of 15
11 years but less than 12 years 68% 12 years but less than 13 years 76% 13 years but less than 14 years 84% 14 years but less than 15 years 92% 15 years or more 100%
The elective share of the surviving spouse is then 50% of the value of this marital- property portion of the augmented estate. For example, if the augmented estate is valued at $850,000, and the parties were married for ten years, then the marital-property portion of the augmented estate is $510,000 (60% of $850,000). The elective share is equal to one-half that amount, or $255,000.
4. Augmented Estate Now Includes More Assets of the Surviving Spouse.
A. Prior Law – Augmented estate determined by the decedent’s probate assets, decedent’s non-probate transfers to others (i.e., by beneficiary designation), and decedent’s non- probate transfer to surviving spouse. Virginia Code §64.2-305. B. Current Law – Augmented estate now also includes the value of the surviving spouse’s property and surviving spouse’s non-probate transfer to others, reduced by enforceable claims against the surviving spouse. Virginia Code §64.2-308.4(A) and 308.8(C). Surviving spouse’s property is then defined at Virginia Code §64.2-308.8(A)(1) as including the surviving spouse’s ownership interest in property or accounts held in joint tenancy with rights of survivorship and ownership interest in property or accounts held in co-ownership with right of survivorship. Presumably, this extends to property held by the surviving spouse in joint tenancy or co-ownership with rights of survivorship with persons other than the decedent. As under prior law, surviving spouse’s property includes property that passes to the surviving spouse “by reason of the decedent’s death” (but not including homestead allowance, family allowance, exempt property, or Social Security benefits). Surviving spouse’s non-probate transfers to others is then defined as “Property that would have been included in the surviving spouse’s non-probate transfers to others, other than the spouse’s fractional and ownership interests included [in the definition of surviving spouse’s Medicaid Elective Share Trust Page 6 of 15
property above], had the spouse been the decedent.” Virginia Code §64.2-308.8(A)(2).This would presumably encompass assets such as life insurance, annuities, or retirement accounts that pass outside of probate, to the extent that the deceased spouse was not the named beneficiary.
5. Surviving Spouse May Claim Homestead Allowance, Family Allowance and Exempt Property Allowance in Addition to Elective Share.
A. Prior Law – Surviving spouse can claim family allowance and exempt property allowance and also claim an elective share, but must choose between claiming homestead allowance and claiming elective share. Virginia Code §64.2-311(D). B. Current Law – Surviving spouse can claim all three allowances, and all three will be in addition to the elective share. Virginia Code §64.2-308.3(B). The homestead allowance statute (§64.2-311) was amended in the 2016 Session of the General Assembly, and now reflects this distinction based on the decedent’s date of death (before or after January 1, 2017).
6. Failure to Claim the Elective Share is Failure to Assert an Inheritance Right.
The relevant language requiring a Medicaid recipient to claim the elective share is Ml450.003.B, which defines "Asset transfer" as any action by an individual or other person that reduces or eliminates the individual’s ownership or control of an asset, and specifically includes “disclaiming an inheritance or not asserting inheritance rights in court.” M1450.003.C. (emphasis added). Although there is no explicit provision in the Manual saying that a Medicaid recipient must “claim elective share rights,” the wording “not asserting inheritance rights in court” is the functional equivalent of saying “not claiming an elective share right in court,” as the elective share is the equivalent of “an inheritance right.” And this is the provision that is in fact used by Medicaid to require a spouse to claim the elective share.
7. Failure to Claim the Elective Share is Penalized.
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So for Medicaid, failure of a surviving spouse who is a Medicaid Recipient (MR) to claim an elective share of the decedent’s estate, in any situation where the elective share would exceed the amounts otherwise received by the surviving spouse as a result of the decedent’s death, will be considered a disqualifying transfer2, i.e., will be treated as if the MR received the elective share of the decedent’s estate and then gave it away. In addition, where the decedent has left assets in trust for the MR, Medicaid eligibility offices claim that the MR is entitled to receive the elective share outright and free of trust, and that failure to claim an outright share is a disqualifying transfer. There is no specific authority for this in the Medicaid Eligibility Manual, and Virginia case law is unclear on whether the elective share claim requires an outright distribution or whether a distribution in trust will satisfy that claim. Whether for traditional estate planning purposes, for Medicaid planning purposes, or because one spouse is already incapacitated, individuals often use testamentary trusts to hold and manage assets for the benefit of the surviving spouse. In determining Medicaid eligibility, the Virginia Medicaid Manual offers explicit instructions regarding “Trusts Established by a Will”: If a Medicaid applicant or recipient is the named beneficiary in a trust established by a will, determine from the terms of the trusts, what income or principal is available to the applicant or recipient. If the trust is “discretionary” determine what part of the corpus or income the trustee is making available to the applicant or recipient. Any corpus or income which the trustee does not make available cannot be counted in determining Medicaid eligibility. M1140.400.
8. Prior Efforts to Avoid Having to Claim the Elective Share.
Because of these provisions, in the past, many Elder Law attorneys drafted a last will and testament for the Community Spouse (CS) leaving some or all of the estate of the CS in a
2 If an otherwise eligible Medicaid applicant has transferred an asset without receiving adequate compensation in return during the five year period preceding the date of application, a penalty period is imposed that disqualifies the person from receiving Medicaid benefits. Medicaid Eligibility Manual, M1450.000 et seq. Medicaid Elective Share Trust Page 8 of 15
testamentary trust for the benefit of the Medicaid Recipient (MR) if the CS were to predecease the MR, as a means of providing a supplemental resource for the surviving MR while still attempting to permit ongoing Medicaid eligibility. Some of these testamentary trusts were drafted to give an income right to the MR equivalent to the value of the elective share, but most practitioners drafted these testamentary trusts as special needs trusts so that it was clear “from the terms of the trust, what income or principal is available to the applicant or recipient.” Assets left in a testamentary special needs trust for a surviving spouse are clearly not countable for purposes of Medicaid eligibility, and can provide a source of supplemental resources that can significantly improve the quality of life for the surviving spouse. Local Medicaid agencies have not to this author’s knowledge directly challenged these provisions, which are supported by both federal and state law, and have not considered assets left in a testamentary trust to be available (and therefore countable) to the surviving spouse. However, many local Medicaid agencies have claimed that the elective share claim of the surviving spouse requires a claim for outright distribution. Providing for the MR by means of a testamentary trust, under this view, does not satisfy the elective share. Failure to make an elective share claim for outright distribution is then considered a disqualifying transfer, resulting in a penalty assessment.
9. Does the New Statute Allow us to Avoid Having to Claim the Elective Share? The provisions of the new statute require that when an elective share claim is asserted on behalf of an incapacitated surviving spouse, it must be satisfied by a trust which shall be treated as a testamentary trust for the benefit of the MR. Do these statutory provisions negate any argument by Medicaid that the elective share can only be satisfied by an outright distribution, since the court now must require the elective share to be held in trust for the benefit of the incapacitated surviving spouse? This question, to my knowledge, remains unanswered.
10. New Provision for Elective Share Claim to be Made by Agent.
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A. Prior Law – elective share claim could be made by a conservator, Virginia Code §64.2-2022(a)(6). Some language in the UDPOA supports authority of an agent under DPOA to claim elective share, but it’s not explicit. See, e.g. Virginia Code §64.2-1632 (estates, trusts and other beneficial interests) and Virginia Code §64.2-1633 (claims and litigation). B. Current Law – Clearly states that an elective share claim can be made by conservator or by an agent under the authority of a durable power of attorney. Virginia Code §64.2-308.13(A). If the claim is made on behalf of an incapacitated surviving spouse,3 and the court enters an order determining the amount due to the surviving spouse, the court must set side that amount in trust for the surviving spouse and the court must appoint a trustee to administer the trust on behalf of the surviving spouse. Virginia Code §64.2-308.13(B) (emphasis added). For ease of reference, and because we attorneys all like our trusts to have acronyms, I will hereby coin a new term and call this statutory trust a Spousal Elective Share Trust (SEST)4. The SEST will be treated as a “testamentary trust” subject to the provisions governing testamentary trustees under Virginia Code §64.2. Virginia Code §64.2-308.13(B)(4).5 Assets remaining in the SEST at death of surviving spouse will be distributed to predeceased spouse’s heirs (following residuary clause, if any, and otherwise by intestacy rules). Virginia Code §64.2- 308.13(B)(3).
11. Key Statutory Trust Provision for the SEST.
The trustee of the SEST must administer the trust in accordance with the following terms, unless the court determines that other terms would be appropriate: “Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse’s support, without court order
3 An election made by a conservator or by an agent under the authority of a durable power of attorney is presumed to be made on behalf of an incapacitated surviving spouse. Virginia Code §64.2-308.13(B).
4 Not to be confused with a certain Utah version of the SEST which applies to members of the Fundamentalist Church of Jesus Christ of Latter-Day Saints, where multiple Community Spouses can predecease the MR and you can therefore have a pooled SEST, also called a SEST POOL. JKOC in case anyone actually reads this. 5 A list of specific references to testamentary trusts in §64.2 is attached to this article. Presumably, “provisions governing testamentary trustees” also includes all statutory provisions for fiduciaries generally and for trustees under the Uniform Trust Act. Medicaid Elective Share Trust Page 10 of 15
but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need.” Virginia Code §64.2-308.13(B)(1).
12. How to Make a Proper MEST – Ensuring the Elective Share Trust Does Not Disrupt Medicaid. I hereby coin another new acronym: MEST (Medicaid Elective Share Trust). The MEST is a SEST that contains assets that are exempt in connection with Medicaid, similar to a Special Needs Trust). It is very important for us elder law attorneys to ensure that the SEST is actually a MEST; although it must not be “messed” up by being counted as a support trust and therefore over-resourcing and the Medicaid Recipient spouse. It is important to note that the SEST provisions do not apply to a surviving spouse who is not incapacitated and asserts an elective share claim on his or her own behalf. In most cases where Medicaid eligibility is an issue for the surviving spouse, it is because the surviving spouse requires a skilled nursing facility level of care, and is therefore often incapacitated for purposes of this statute. However, not all nursing home residents are mentally incapacitated, as some are there primarily due to physical disabilities. And even if the nursing home spouse is mentally incapacitated, it is rare that the person will have been declared mentally incapacitated by a court. Therefore, of crucial importance here is the fact that no court finding of incapacity is required under this statute, as incapacity is presumed if the claim is made by an agent under a durable general power of attorney. Virginia Code §64.2-308.13(B). The statute directs the trustee of the SEST to take into account “benefits of medical or other forms of assistance from any state or federal government or governmental agency” for which there are financial need requirements. Virginia Code §64.2-308.13(B). This would appear to authorize the trustee to consider whether the beneficiary is eligible for government benefits, and arguably to withhold distributions for purposes that could be satisfied by those programs, thereby turning the SEST into a MEST (Medicaid Elective Share Trust).
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However, the statute confuses matters by stating that the trustee may make distributions “for the surviving spouse’s support,” which leads one to question whether Medicaid might consider the SEST to be a support trust. Thankfully, although the “support” language is in the statute, the support distributions are subject to the discretion of the trustee’s determination as to what is “suitable and proper,” taking into account other sources of support including government benefits. §64.2-308.13(B)(1). Also, under the Medicaid eligibility rules for a discretionary trust, any corpus or income which the trustee does not actually make available cannot be counted in determining Medicaid eligibility. M1140.400. However, to absolutely ensure that the SEST is treated as a MEST, you need to draft your pleadings, including the Petition to Establish Elective Share and Establish Trust and the all- important Order Establishing the Elective Share and Establishing the MEST, so that the trust created is clearly an exempt asset in connection with Medicaid. You will see how this is accomplished in the sample pleadings attached hereto. The relevant language in the Petition, reflected in the Order, is as follows: Establishing the elective share as $______, that such share be satisfied by transfer of a ______% interest in ______to [MR], and that such interest be automatically set aside in a testamentary (meaning created by the last will and testament of [CS] discretionary trust pursuant to Virginia Code § 64.2-308.13.B., with [desired trustee] as trustee, and the property (and any income generated by said property) in said testamentary discretionary trust established pursuant to Virginia Code § 64.2-308.13.B shall be considered exempt and not a resource in connection with Medicaid, pursuant to the clear intent of Virginia Code § 64.2-308.13.B., and pursuant to Federal Medicaid law and Virginia Medicaid policy, specifically: Virginia Medicaid Policy Manual, Section S1110.100.B.1and Virginia Medicaid Policy Manual M1140.400.A, which states that "[i]f a Medicaid applicant or recipient is the named beneficiary in a trust established by a will, determine from the terms of the trusts, what income or principal is available to the applicant or recipient. If the trust is 'discretionary' determine what part of the corpus or income the trustee is making available to the applicant or recipient. Any corpus or income which the
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trustee does not make available cannot be counted in determining Medicaid eligibility"; and Establishing that the trustee of the testamentary discretionary trust established pursuant to Virginia Code § 64.2-308.13.B must administer said trust in accordance with the requirements of Virginia Code § 64.2-308.13.B and such other terms as this court determines to be appropriate, specifically that: Expenditures of income and principal of this testamentary trust shall be totally discretionary by the trustee, and may be made only in the manner, when, and to the extent that, the trustee determines suitable and proper for the surviving spouse's benefit, without further court order but with regard to other support, income, and property of the surviving spouse and with regard to benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need, specifically including Medicaid.
13. Will a Forced Testamentary Trust Work?
The big question that remains is whether you can draft “Medicaid-style Will” (i.e., a Will for the Community Spouse designed to help protect the assets of the CS if the CS predeceases the MR) that forces the elective share into a Special Needs Trust or into a MEST, rather than requiring the MR to file an Elective Share claim in order to create the SEST / MEST. If it were possible to do this, you might still be forced to calculate the value of the elective share in order to demonstrate that the value of a testamentary trust created by the deceased spouse is substantially equivalent to the value of the elective share that would be placed in trust under the SEST statute, unless you leave 100% of the estate to an SNT or to a trust modeled after the SEST. Arguably, if one of these factors is met, then the surviving spouse has not given up anything of value in refusing to claim the elective share. If nothing of value has been given up, there can be no “disqualifying transfer” for purposes of Medicaid eligibility. In fact, if the value of the testamentary trust for the benefit of the surviving spouse exceeds the value of the elective share of the surviving spouse (as when the CS leaves all assets in trust for the benefit of the MR), a claim for the elective share that would be placed in a SEST would be a claim for a lesser inheritance. Medicaid Elective Share Trust Page 13 of 15
It would thus appear logical that, so long as a forced testamentary trust is funded with sufficient assets to satisfy the elective share, there should be no logical reason for Medicaid to force the claiming of an elective share on behalf of the MR. However, you will note that I used the word logical twice in the last sentence, and as all experienced elder law practitioners know, local Medicaid agencies and Medicaid rules are often not acquainted with the concept of logic. Personally, my “Medicaid-style Wills” (i.e., a Will for the Community Spouse) have varied over the last couple of years. I have some Medicaid-style Wills out there that leave 100% of the estate to a Special Needs Trust for the MR. I have some Medicaid-style Wills out there that leave 100% of the assets directly to a Special Needs Trust that specifically conforms with the requirement of the SEST and references the language of the SEST statute. And lastly, I have some Medicaid-style Wills out there that completely disinherit the MR. It was a Community Spouse with one of these Wills -- disinheriting the MR -- who died recently and allowed me to test the SEST statute and successfully convert the SEST to a MEST. I have attached to this article all of the paperwork in this case – starting with the Claim for the Elective Share all the way through the Final Order creating the MEST and then the final Medicaid approval. So at least we now know that claiming the Elective Share under the new SEST statute does allow us to preserve Medicaid eligibility, and now all of you have a detailed template for exactly how to do this.
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§ 64.2-426. Testamentary additions to trusts by testator dying ...... including the exercise of a power of appointment, may be made by a will to the trustees of an inter vivos trust or testamentary trust, whether the trust ...
§ 64.2-427. Testamentary additions to trusts by testator dying ...... testator's will provides otherwise, property devised or bequeathed to a trust described in subsection A is not held under a testamentary trust of the ...
§ 38.2-3112. Designation of testamentary trustee as ...... For purposes of trust administration, the proceeds shall be subject to the court's jurisdiction over the trust as in any other testamentary trust, but the ...
§ 64.2-2610. Delivery or filing ... the case of an interest created under the law of intestate succession or an interest created by will, other than an interest in a testamentary trust, (i) a ...
§ 64.2-1402. Jurisdiction for qualification of certain ...... A. In the case of a testamentary trust for which there is no jurisdiction for probate as provided in § 64.2-1401 and in the case of any trust under any ...
§ 64.2-308.13. Right of election personal to surviving spouse ...... 4. The trust shall be treated as a testamentary trust subject to the provisions governing testamentary trustees under Title 64.2. 2016, cc. 187, 269. ...
§ 64.2-706. Principal place of administration ... F. The court, for good cause shown, may transfer the principal place of administration of a testamentary trust to another state or to a jurisdiction ...
§ 64.2-1003. Total return unitrust ... any interested trustee. "Grantor" means an individual who created an inter vivos or a testamentary trust. "Grantor-created ...
§ 6.2-604. Definitions ... The term does not include (i) a regular trust account under a testamentary trust or a trust agreement that has significance apart from the account or (ii ...
§ 64.2-1401. Jurisdiction for qualification of testamentary ...... A. In the case of a testamentary trust, the jurisdiction where the will has been admitted to probate in the Commonwealth shall be the exclusive ...
§ 64.2-105. Incorporation by reference of certain powers of ...... or corporations having trust powers, and includes the fiduciary of the estate of a decedent and the trustee of an inter vivos or testamentary trust. ...
§ 64.2-524. Validation of certain conveyances by foreign ...... the Commonwealth made on or after June 30, 1986, by an executor described in subsection A or the trustee of a testamentary trust established in a ...
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CERTIFICATE OF QUALIFICATION
Circuit Court of Fairfax County, Virginia
Fiduciary Number FI-2017 -0002256
I, John T. Frey, Clerk of the Circuit Court of Fairfax County, Virginia, the same being a Court of Probate and of Record and having a seal, do hereby certify that it appears of record in my office pursuant to law that:
Michael Mehen a/k1a Michael Andrew Mehen
duly qualified in this court as Executor for the estate of Thomas J Mehen a/k/a Thomas James Mehen, deceased.
A bond in the amount of $1 ,800,000 .00 has been posted.
The powers of the fiduciary(ies) named above continue in full force and effect.
IN TESTIMONY WHEREOF I have hereunto set my hand, and affixed the seal of said Court hereto, at Fairfax, Virginia this 5th day of December, 2017.
,TESTE: JOHN T. FREY, CLERK
By: Deputy Clerk
Form 7 Certificate of Qualification.doc version 1.1 Date Modified: 1111112004 THIS DEED WAS DRAFTED BY THE FARR LAW FIRM WITHOUT BENEFIT OF TITLE EXAMINATION THE EXISTENCE OF TITLE INSURANCE IS UNKNOWN TO PREPARER. Return to: Farr Law Firm, A Professional Corporation; 10640 Main Street, Suite 200, Fairfax Virginia 22030 Tax Map No.: 0303 09 0099 Preparing Attorney: Evan H. Farr, VSB #27916 Grantee’s Address: 1505 Dewberry Court, McLean, Virginia 22101 Consideration: $0.00 This Deed of Gift is exempt from recordation tax pursuant to Virginia Code § 58.1-811(D) because no consideration has passed between the parties.
Deed of Gift
This Deed of Gift, made this day, ______, by and between the following parties:
GRANTORS: MICHAEL MEHEN, as Executor of the estate of THOMAS J. MEHEN, THOMAS MEHEN ,a married man, GEORGE MEHEN, an unmarried man, and MICHAEL MEHEN, a married man (“Grantor”), and
FIRST THOMAS C. MEHEN, as Trustee of the testamentary trust established under the Last GRANTEE: Will and Testament of THOMAS J. MEHEN dated February 17, 2017, pursuant to the attached court order entered on August 17, 2018 (“First Grantee”), and
SECOND THOMAS MEHEN, a married man, GEORGE MEHEN, an unmarried man, and MICHAEL GRANTEE: MEHEN, a married man, as tenants in common (“Second Grantee”).
Whereas, the property was owned by THOMAS J. MEHEN by virtue of deed dated March 30, 2017, and recorded June 23, 2017 in Deed Book 25089, at Page 388; and
Whereas, THOMAS J. MEHEN departed this life on November 10, 2017; and
Whereas, the Last Will and Testament of THOMAS J. MEHEN dated February 17, 2017 (recorded in Will Book 1112 at Page 2083 among the Fiduciary Records of the Clerk of the Circuit Court of Fairfax County, Virginia) distributed his estate to his children in equal shares; and
Whereas, ELIZABETH L. MEHEN, as the surviving spouse, filed a Claim for Elective Share of Augment Estate against said Last Will and Testament of Thomas J. Mehen (said Claim filed May 17, 2018, and recorded in Will Book 1127 at Page 81 among the Fiduciary Records of the Clerk of the Circuit Court of Fairfax County, Virginia); and
Whereas, the value of the elective share was determined by Order of The Circuit Court of Fairfax County entered on August 17, 2018, which order is attached hereto and incorporated herein; and
Whereas pursuant to said Court Order, a 65.21% undivided interest in the real estate described herein is to be transferred to the Grantee in satisfaction of the elective share of ELIZABETH L. MEHEN. Now Witnesseth, that for estate administration purposes and for no consideration, the Grantors do hereby give, transfer, and convey an undivided sixty-five and twenty-one hundredths percent (65.21%) interest unto the First Grantee and all successors in trust, and an undivided thirty- four and seventy-nine hundredths percent (34.79%) interest unto the Second Grantee, as tenants in common, with general warranty of title, of that certain lot or parcel of land, with improvements thereon, situate, lying and being in FAIRFAX COUNTY, VIRGINIA, having an address of 1505 Dewberry Court, McLean, Virginia 22101 and more particularly described as follows:
Legal Description: Lot 99, Section 2, Broyhill's McLean Estates and including a resubdivision of part of blocks 8 and 9, West McLean, as the same appears duly dedicated, platted and recorded in Deed Book 1651, page 435, among the land records of Fairfax County, Virginia.
The First Grantee to Have and to Hold the 65.21% undivided interest in the above- described property as Trustee under the above-referenced trust, with all powers conferred on trustees under the general testamentary trust laws of the Commonwealth of Virginia and pursuant to Virginia Code § 64.2-308.13.B and such other terms as the Court has determined to be appropriate as stated in the attached Court Order.
No Person who deals with the First Grantee hereunder, or with any successor(s) in trust, shall be bound to inquire into the authority for, or propriety of, any action taken or not taken by such First Grantee. Every deed, deed of trust, lease, or other instrument executed by the First Grantee, or by any successor(s) in trust, on behalf of the trust identified herein and in relation to the property described herein, shall be conclusive evidence in favor of every person claiming any right, title, or interest thereunder that: (i) at the time of the delivery of such instrument the trust was in full force and effect; (ii) that such instrument was executed in accordance with the terms and conditions of the trust agreement or declaration of trust establishing such trust, and is binding upon all beneficiaries of said trust; and (iii) if such instrument is executed by successor(s) in trust to the First Grantee that such successor(s) in trust were properly appointed and were fully vested with all the title, estate, rights, powers, duties, and obligations of First Grantee, provided that said successor(s) in trust certify in said instrument that such successor(s) in trust were properly appointed.
This Conveyance is made subject to all provisions, covenants, encumbrances, restrictions, rights of way, easements, and/or agreements contained in the documents forming the chain of title to this property.
The Grantors Covenant that the Grantors have the right to convey said property to the Grantees; that the Grantees shall have quiet possession of the property; and that the Grantors will execute such further assurances of the property as may be requisite and necessary.
-2- Witness the following signatures and seals.
______(SEAL) MICHAEL MEHEN, individually and as Executor of the estate of THOMAS J. MEHEN
STATE OR COMMONWEALTH OF ______COUNTY OR CITY OF ______, TO-WIT:
The undersigned Notary Public for the jurisdiction aforesaid does hereby certify that MICHAEL MEHEN, individually and as Executor of the estate of THOMAS J. MEHEN, whose name is signed to the foregoing and hereunto annexed deed, bearing date on this day, has this day acknowledged the same before me in my jurisdiction aforesaid.
Given Under My Hand and Seal this day, ______.
______, Notary Public Commission expiration date: ______
-3- ______(SEAL) THOMAS MEHEN
STATE OR COMMONWEALTH OF ______COUNTY OR CITY OF ______, TO-WIT:
The undersigned Notary Public for the jurisdiction aforesaid does hereby certify that THOMAS MEHEN, whose name is signed to the foregoing and hereunto annexed deed, bearing date on this day, has this day acknowledged the same before me in my jurisdiction aforesaid.
Given Under My Hand and Seal this day, ______.
______, Notary Public Commission expiration date: ______
-4- ______(SEAL) GEORGE MEHEN
STATE OR COMMONWEALTH OF ______COUNTY OR CITY OF ______, TO-WIT:
The undersigned Notary Public for the jurisdiction aforesaid does hereby certify that GEORGE MEHEN, whose name is signed to the foregoing and hereunto annexed deed, bearing date on this day, has this day acknowledged the same before me in my jurisdiction aforesaid.
Given Under My Hand and Seal this day, ______.
______, Notary Public Commission expiration date: ______
-5- FI-2017 -0002256 BK011121939 12/05/2017
FIDUCIARY ACKNOWLEDGMENT - DEC EDENT ESTATE Circuit Court of Fairfax County, Virginia
Fiduciary Number FI-2017-0002 2S6
In re oThomas J Mehen alkla Thomas James Mehen, decea sed Date of Qualification: 12/05/2017
I, Michael Mehen alkJa Michael Andrew Mehen in my capacily as Executor do hereby acknowledge that I have received from the Clerk of the Fairfax County Circuit Court, an Information Packet which includes the following: Important Notice to Fiduciaries Regarding Estate Assets and Bank Accounts, a Schedule of Fees for the Commissioner of Accounts, Inventory forms with instructions; Accounting forms with instructions; Statement in Lieu of Settlement of Accounts and a Tax Certificate form .
As Fiduciary, I understand I am charged with the general responsibilities as follows:
1. Giving notice of my qualification or of probate as required by law.
2. Recording an AffidaVIT of Notice of qualification or probate in the Clerk's office where the will is recorded , as required by law.
3. Filing any individual, fiduciary income or estate tax returns required by the state or federal governments.
4. Filing an Inventory with the Commissioner of Accounts no later than four months after my qualification date.
5. Filing a Settlement of Accounts OR a Statement in Lieu of Settlement of Accounts with the Commissioner of Accounts no later than 16 months after my qualification date.
6. Paying all probate taxes due to the Clerk of the Circuit Court.
7. Keeping assets under my control as fiduciary separate from my individual and personal assets by establishing a separate fiduciary bank account (into which I will deposit all rece ipts and from which I will make all disbursement) that either provides statements with images of canceled checks or returns canceled checks. The statements or the canceled checks are to be submitted when my accountings are filed .
8. Exercising reasonable care in the investment and/or sale of assets and payment of debts with funds under my control.
9. Notifying the Commissioner of Accounts, on any change of my address and phone number (and that of my resident agent if applicable) .
V'__ ~,,------,- __/J- __-_-_ -_~~~ ,Michael Mehen a/kla Michael Andrew Mehen
Home address: 1505 Dewberry Court. McLean. VA 22101 Home telephone number: 571-421-4748 Employer name: MCC Work address: 1099 14th Street. NW, Suite 700, Washington. DC 20005 Work telephone number: 202-431-0297
Form 45 FidU CI ary Acknowledgement - Decedent .doc version 3.0 Date Modified: 21112012 FI-2017 -0002256 BK011121940 12/05/2017
LIST OF HEIRS Circuit Court of Fairfax County, Virginia Fiduciary Number FI-2017 -0002256
Thomas J Mehen a/kla Thomas James Mehen, deceased Date of Death: 11/10/2017
IM/e, the undersigned, hereby state under oath that the following are all of the heirs of the Decedent:
Heir Name: Eli zabeth L Mehen Address: 10701 Main Street, Fa irfax, VA 22030 Relationship: Spouse Age: ADULT
Given under my/our hand this 05th day of December, 2017.
Michael Mehen a/kfa Michael Andrew Mehen, Executor
State of Virginia County of Fairfax, to-wit:
Subscribed and sworn to before me by Michael Mehen a/kfa Michael Andrew Mehen, this 05th day of December, 2017. rL. -9. ~clr _~-'-_--='--___, Deputy Clerk
VIRGINIA: In the Clerk's Office of the Circuit Court of Fairfax County, this 05th day of December, 2017, the foregoing List of Heirs was filed and admitted to record.
Teste: John T. Frey, Clerk By: (2---9' , ~clr _y-'-"'_"'--=' '--___, Deputy Clerk
Form 12 List of Heirs.doc version LO Date Modified: 111112004 FI:2017 -0002256 BK011121941 12/05/2017
V I R GIN I A: IN THE CIRCUIT COURT OF FAIRFAX COUNTY
Fiduciary Number FI-2017 -0002256
Estate of Thomas J Mehen alk/a Thomas James Mehen, deceased
ORDER ADMITTING WILL TO PROBATE AND QUALIFICATION OF EXECUTOR
This day came Michael Mehen a/kJa Michael Andrew Mehen and offered for probate a paper writing dated 02/17/2017 consisting of 18 pages purporting to be the last will and testament of Thomas J Mehen a/kJa Thomas James Mehen, who died 11/10/2017.
Whereupon said paper writing was executed in the manner provided in §64.2-452 or §64.2-453 of the 1950 Code of Virginia , as amended. This paper writing is admitted to probate and ordered to be recorded as and for the true last will and testament of Thomas J Mehen a/kJa Thomas James Mehen.
The last will and testament having been admitted to probate, I do now appoint Michael Mehen alk1a Michael Andrew Mehen, Executor for the estate of the above said decedent. The Executor qualifies as such by taking the oath prescribed by law and entering into and acknowledging a bond in penalty of ONE MILLION EIGHT HUNDRED THOUSAND dollars, without surety waived pursuant to the Will.
Said bond being duly signed, sealed and acknowledged and delivered by the obligor therein named, before me, is approved and ordered to be recorded.
Thereupon the said fiduciary filed with me, and subscribed and sworn to the same before me, a list of the person(s) who would have been the heirs of the decedent had he died intestate, which is received and admitted to record.
Entered this 05th day of December, 2017.
TESTE: JOHN T. FREY, CLERK
By: Deputy.Clerk
Form 33 Self Will with Qual.doc version 1.0 Date Modified: 11/1/2004 l6l,Q.;;/J,QJ7" ..nlL:J 7~ / e-.,II)< tI FI-2017 -0002256 BK011121942 12/05/2017
OATH OF FIDUCIARY
Fiduciary Number FI-2017 -0002256
Estate of Thomas J Mehen alkla Thomas James Mehen, deceased.
COMMONWEALTH OF VIRGINIA, COUNTY OF FAIRFAX, to-wit:
I, Michael Mehen alkJa Michael Andrew Mehen, do solemnly swear or affirm that I will faithfully and impartially discharge all the duties incumbent upon me as Executor according to the best of my ability and judgment and pursuant to the laws of the Commonwealth of Virginia.
The writing admitted to record is the true last will and testament of the deceased, so far as I know.
Executor
Subscribed and sworn to before me this 05th day of December, 2017.
rl.·-9, R,clr- _"-I""'-'-_><'l----''--___, Deputy Clerk
Form 14 Oath of Fiduciary.doc version 1.1 Dale Modified: 11 11112004 FI-2017 -0002256 BK 01112 1943 12/05/2017
MEMORANDUM OF FACTS - PROBATE Circuit Court of Fairfax County, Virginia Fiduciary Number FI-2017 -0002256
Estate of: Thomas J Mehen a/k/a Thomas James Mehen, deceased, Residence address: 1505 Dewberry Court, Mclean, VA 22101 Decedent's date and place of death: 11/10/2017 - Mclean, VA Decedent's marital status: Married Date of Birth: 09/05/1936
Decedent died: Testate: wi ll admitted to probate Date of will: 02/17/2017 How proved: self proving
Type of Fiduciary: Executor Basis of Appointment: Named In Will
Fiduciary Name Michael Mehen a/k/a Michael Andrew Mehen Home Address: 1505 Dewberry Court, McLean, VA 22101 Home Telephone Number: 571-421-4748 Work Address: 1099 14th Street, NW, Suite 700, Washington, DC 20005 Work Telephone Number: 202-431-0297
Estate Value: Personal Assets: $111 ,408.09 VA Real Estate: $779,590.00 Total: $890,998.09 (Fairfax County)
Power of sale over realty: Yes
Bond Amount: $1 ,800,000.00 Without Surety Surety Waived By: Will
Inventory and accountings waived: No
Na me of the attorney(s) representing the fiduciary/estate:
Name: Sara B Entis Address: 10640 Main Street, Suite 200, Fairfax, VA 22030 Telephone Number: 703-691-1888
Remarks: (2·-9, R-dr Date: 12/05/2017 _"-1""'__ ><'----"' '--___, Deputy Clerk
Form 49 Mem orandum of Facls - Decedent .doc version 1. 0 Date Modified: 11/1/2004 FI-2017 -0002256 BK 00333 0131 12/05/201 7
FIDUCIARY'S BOND
Fiduciary Number FI-2017 -0002256
KNOW ALL MEN BY THESE PRESENTS, THAT
Michael Mehen a/kJa Michael Andrew Mehen
The "OBlIGOR(S)" , is(are) held fi rml y bound to the COMMONWEALTH OF VIRGINIA, in the sum of ONE MILLION EIGHT HUNDRED THOUSAND dollars, to the payment whereof I(we) bind myself(ourselves), our heirs , personal representatives, successors and assign, jointly and severally, by these presents, hereby waiving the benefit of any homestead exemptions as to this obligation.
This debt is wi thout surety Type of Surety: none
The Conditions of this BOND are:
Michael Mehen a/kJa Michael Andrew Mehen, the Obligor(s) was this day qualified as Executor of the estate of Thomas J Mehen alkJa Thomas James Mehen, deceased.
The Obligor(s) shall faithfully perform all duties required by law of said fiduciary office. If these conditions are faithfully fulfi lled, th is obligation shall be void; otherwise it shall remain in full force and effect.
In wi tness whereof, the Undersigned have hereunto set their hands and seals, th is 05th day of December, 2017.
Michael Mehen a/kJa Michael Andrew Mehen
Before the Clerk of the Fairfax County Circuit Court on this 05th day of December, 2017. t t
The foregoing BOND was subscribed , sworn to and acknowledged by: Michael Mehen a/kJa Michael Andrew Mehen the obligor(s) therein, and ordered to be recorded as provided by law.
Teste: John T. Frey, Clerk
By ~9 , £clr Deputy Clerk Form 8 Fiduciary's Bond.doc version 1. 1 Date Modifi ed: 1111112004 J.!llil~/lQ,1 7", n,nIL ' 7-v- I e ~ ' 1101( tJ FI-2017-0002256 BK 011121938 12/05/2017
PROBATE TAX RETURN - CONFIDENTIAL Circuit Court of Fairfax County, Virginia Fiduciary Number FI-2017 -0002256
This rerurn must be filed with the Clerk o/Circuit Court at the time a will is offered for probate or rhe grant ofadministration is sought in such court when the estate exceedsfifieen thousand dollars ($ 15, 000) in value.
Decedent's name: Thomas J Mehen a/kla Thomas James Mehen
Social Security No.: 235-62-8187 Date of Birth: 09/05/1936
Res ident Address at death: 1505 Dewberry Court, McLean, VA 22101
Date and place of death: 11/10/2017 -- McLean VA
VALUE OF DECEDENT'S PROBATE ESTATE:
(a) Personal Property $111,408.09
(b) Real Property located in Virginia $779,590,00
TOTAL VALUE OF DECEDENT'S PROBATE ESTATE $890,998.09
I, the undersigned, declare under penalty of law that I have examined this Return and to the best of my belief it is a true, correct and complete Return.
12/05/2017 r:::/h /:J , Executor Address: 1505 Dewberry Court, McLean, VA 22101
INSTRUCTIONS GENERAL. The probate tax is not an inheritance tax or an estate tax, It is a tax imposed on the probate of every will or grant of administration on every estate that exceeds $15,000.00, The state probate tax rate is 10 cents for every S100 or fraction thereof, of the value of the decedent's estate, No one is pemnitted to qualify as executor or administrator until this tax is paid . Cities and counties are permitted to impose a probate tax in an amount equal to 1/3 of the state tax.
WHAT'S INCLUDED. ne tax is imposed on the decedent's probate estate. Thus, do not include (1) any property that the decedent owned with another with the right of survivorship, (2) life ins,urance unless it is payable to th.e decedent's estate, or (3) any other property passing by contract or benefiCiary designation from the decedent to another person, In addition, you should not include any of the decedent's real estate locatea in another state.
VALUATION METHOD. Because of the difficulty in detemnining exact values at the time Of probate or qualification, the Clerk will accept a reasonable estimate of the value of the decedent's personal property, You shou id try to be as accurate as possible when making your estimate in order to eliminate the need to return to the Clerk's Office and pay additional tax and/or increase your bond at a later time. If you do not know the actual value of the decedent's real property, you may use its assessed value for local real estate tax purposes.
VALUATtON DATE. All property is to be valued as of the date of the decedent's death.
Form 22 Probate Ta'X Return.doc version 1.0 Dale Modified: J JIJ12004 IRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF FAIRFAX
RE: ) STATE OF THOMAS J. MEHEN, ) FI-2017-0002256 )
CLAIM FOR ELECTIVE SHARE OF AUGMENTED ESTATE WHEREAS, Thomas J. Mehen, a resident of Fairfax County, Virginia, departed
his life on November 10, 2017, seized and possessed of certain real and personal property;
d
WHEREAS, said Thomas J. Mehen died testate; and
WHEREAS, the Last Will and Testament of Thomas J. Mehen dated February
17,2017 ("Will") was admitted to probate on December 5, 2017.
WHEREAS, I, Elizabeth L. Mehen, am the surviving spouse of Thomas J.
ehen, whose real and personal property passed to our three children, Thomas Mehen,
eorge Mehen and Michael Mehen, pursuant to the Will.
NOW THEREFORE, I, Elizabeth L. Mehen, surviving spouse of Thomas J.
ehen, deceased, do hereby claim my fifty percent (50%) elective share in the marital
roperty portion of the augmented estate of Thomas J. Mehen pursuant to VA. Code Ann.
64.2-308.3.
Fiduciary;t: FI·2017-OOO2256 fIIof Pages: 2 Date: 051171'2018 WILL BI< 01121 PO OOBl Estate: MEHEN, THOMAS J Recorded In FAIRFAX CIRCUIT COURT TESTE: JOHN T. FREY
""II~II 11I11II1 ITNESS the following signature and seal on this 1'1 nI day of
II--+-IL--'-'-'-+----' 2018
t-"~h« ... "\s '\~h~~e-y I'" ~I.I Elizabeth L. Mehen by Thomas Mehen as Attorney in Fact
ity/Countyof FinutI;{ tate/Commonw~.1Zf2hIN!11
SUBSCRIBED and sworn to before me this ;t-.;r1l day of II-_-J...-'<-L~{--,-_ _ " 2018, by said Thomas Mehen as Attorney in Fact for Elizabeth . Mehen, w 0 is known to me.
y commission eXPires:40-t=' ZO/q egistration #: 766 1-16
Certificate of Service
hereby certify that a true copy of the foregoing was hand delivered or mailed first class ostage repaid to Michael Mehen, George Mehen and Thomas Mehen this ('f 1'\ day of II----L--"-"-\-----" 2018
Sara Entis
-2- FILED COURT SERVIC S IRGINlA: 211/ 8 AUG I 4 AM 8 31 IN THE CIRCUIT COU RT FOR THE COUNTY OF FAIRFAJSOHN T. FR,-y CLER K. CI RCUI (CO JRT FAI RFAX. VA IN RE: ) ESTATE OF ) CL-20l8-11219 homas J. Mehen ) F1-20 17 -0002256
MOTION FOR LEAVE TO AMEND PETITION Comes now Elizabeth L. Mehen, surviving spouse of Thomas J. Mehen,
eceased, herein by counsel, and respectfully states as follows:
I. Petitioner filed a Petition to Establish Elective Share and Establish Trust on July
26, 2018 ("Petition").
Petitioner desires to amend said Petition to more particularly describe the trust to
be established as a Special Needs Trust.
Allowing the Petitioner to amend the Petition would not prejudice any affected
party and would allow for the most efficient resolution of the matter.
The proposed amended Petition is filed with this Motion.
Wherefore, Petitioner requests this court enter an Order granting her leave to
end her Petition in all respects, that the Amended Petition be deemed filed as of the
ate of such Order, and that the hearing on such Amended Petition be held on August 17,
018 at 10:00 am as requested in the original Petition.
Respectfully Submitted, HE LAW FIRM OF EVAN H. FARR, p.e.
Evan H. Farr, VSB No. 27916 Kathleen G. Limjoco VSB No. 37689 Sara B. Entis, VSB No. 42259 Counsel for Petitioners 10640 Main Street, Suite 200 Fairfax, Virginia 22030 Tel: 703-691-1888 Fax: 703-345-9999
-2- FILED COURT SERVIC
IRGINlA: ZUIB AUG 14 AH 8: IN THE CIRCUIT COURT FOR THE COUNTY OF FA~~HN T. Fli[ r ~A' CIRC UIT COU T r. IRFAX. VI..
IN RE: ) ESTATE OF ) CL-20 I 8-11219 Thomas J. Mehen ) FI-2017-0002256
FIRST AMENDED PETITION TO ESTABLISH ELECTIVE SHARE AND ESTABLISH TRUST Comes now Elizabeth L. Mehen, surviving spouse of Thomas J. Mehen,
eceased, herein by counsel, and file this Amended Petition and as grounds therefore,
espectfully states as follows:
I. Thomas J. Mehen ("Thomas") and Elizabeth L. Mehen ("Elizabeth") were
married on May 31 , 1968.
Thomas died testate on November 10, 2017. Michael Mehen, decedent' s son,
qualified as Executor on December 5, 2017.
Thomas C. Mehen, as Agent for Elizabeth under the Durable General Power of
Attorney dated January 3, 2014 attached hereto as Exhibit J, filed a Claim for
Election of Share of Augmented Estate on May J 7, 20J 8, which is attached
hereto as Exhibit 2.
Pursuant to Virginia Code § 64.2-308.13.8., Elizabeth is presumed to be an
incapacitated person because her Claim for Election of Share of Augmented
Estate was made by her agent under a durable power of attorney. Elizabeth is
incapacitated and resides in Fairfax Nursing Home. The marital-property portion of Thomas's augmented estate is 50% pursuant to
Virginia Code § 64.2-308.3. The length of the marriage was 49 years making the value of Elizabeth's marital-property portion of Thomas's augmented estate
100% under Virginia Code § 64.2-308.4.
Thomas's probate estate consisted of the following: a) the real property located at 1505 Dewberry Court, McLean, VA 22101 ("Real
Property") which Real Property was owned solely by Thomas. The tax
assessed value of the Real Property for 2017 is $779,590. b) 534.612185 shares Dowdupont (DWDP) @70.12/sharetotaling $37.487.01. c) 84.8788708 shares Chemours (CC) @ $50.73/share totaling $4,305.90. d) Promissory Note dated February 17,2017 from Thomas C. Mehen in the
original principal amount of $36,900.00 with a current balance due of
$31,500.00. e) Promissory Note dated February 17, 2017 from Michael A. Mehen in the
original principal amount of$14,166.00 with a current balance due of
$11,899.44. f) BB&T checking account #7533 with a date of death balance of$90,129.84. g) 2004 Honda Accord 4D LX with NADA retail value of $2,900.
Administration costs for the Estate are as follows: a) Funeral Expenses of$5,386.10. b) Legal Fees of $47,890. c) Probate taxes of$957.81.
-2- 8. Thomas made no non-probate transfers to Elizabeth.
Thomas made non-probate transfers through beneficiary designation of life
insurance to his sons Thomas C. Mehen, George Mehen and Michael Mehen.
Each son received $37,698.05 for a total of$113,094.15 of non-probate transfers
to others.
10. Elizabeth's property consists of the following:
a) BB&T #7657 with balance of$I,516.38
b) 2009 Honda Accord 4D LX with NADA retail value of $7,625.
11. The value of Thomas's augmented estate is $1,025,813.81 (see Exhibit 3 for
calculation) and the marital property portion thereof is $1,025,813.81.
12. Elizabeth's 50% elective share of the marital property portion of the augmented
estate is therefore $512,906.91. $508,336.22 remains unsatisfied.
IN CONSIDERATION WHEREOF, it is hereby requested that this Court enter an
der:
1. Establishing Elizabeth L. Mehen' s elective share as $512,906.91, that such share be
satisfied by transfer of a 65.21 % interest in the Real Property to Elizabeth L. Mehen,
and that such real property interest be automatically set aside in a testamentary
l (meaning created by the last will and testament of Thomas J. Mehen ) discretionary
trust pursuant to Virginia Code § 64.2-308.13.B., with Thomas C. Mehen as trustee,
and the property (and any income generated by said property) in said testamentary
1 Testamentary means "A trust that is created by a will and takes effect when the settlor (testator) dies." See, for example, Black's Law Dictionary, 7th Ed.
-3- discretionary trust established pursuant to Virginia Code § 64.2-308.13.B shall be
considered exempt and not a resource in connection with Medicaid, pursuant to the
clear intent of Virginia Code § 64.2-308.13.B., and pursuant to Federal Medicaid law
and Virginia Medicaid policy, specifically:
a. Virginia Medicaid Policy Manual, Section SIll 0.1 00.B.1, which states that
Resources are cash and any other personal or real property that an individual (or
spouse, if any):
• owns;
• has the right, authority, or power to convert to cash (if not already cash); and
• is not legally restricted from using for hislher support and maintenance.
and
b. Virginia Medicaid Policy Manual Ml140.400.A, which states that "[i]fa Medicaid
applicant or recipient is the named beneficiary in a trust established by a will,
detennine from the tenns of the trusts, what income or principal is available to the
applicant or recipient. If the trust is 'discretionary' detennine what part of the corpus
or income the trustee is making available to the applicant or recipient. Any corpus
or income which the trustee does not make available cannot be counted in
determining Medicaid eligibility"; and
2 42 U.S.C. § 1396p(d)(2): "For purposes of this subsection, an individual shall be considered to have established a trust if assets of the individual were used to form all or part of the corpus of the trust and if any of the following individuals established such trust other than by will: ... (ii) The individual's spouse." (emphasis added) and 20 CFR § 416.1201. Resources; general. (a) Resources; defmed. For purposes of this subpart L, resources means cash or other liquid assets or any real or personal property that an individual (or spouse, if any) owns and could convert to cash to be used for his or her support and maintenance.
-4- · Establishing that the trustee of the testamentary discretionary trust established pursuant
to Virginia Code § 64.2-308.13.B must administer said trust in accordance with the
requirements of Virginia Code § 64.2-308.13.B and such other terms as this court
determines to be appropriate, specifically that:
a. Expenditures of income and principal of this testamentary trust shall be totally
discretionary by the trustee, and may be made only in the manner, when, and to the
extent that, the trustee determines suitable and proper for the surviving spouse's
benefit, without further court order but with regard to other support, income, and
property of the surviving spouse and with regard to benefits of medical or other
forms of assistance from any state or federal government or governmental agency
for which the surviving spouse must qualify on the basis of need, specifically
including Medicaid;
b. During the surviving spouse's incapacity, neither the surviving spouse nor anyone
acting on behalf of the surviving spouse has a power to terminate the trust;
c. Upon the surviving spouse's death, the trustee shall transfer the unexpended trust
property under the residuary clause of the will of the predeceased spouse against
whom the elective share was taken, as if that predeceased spouse died immediately
after the surviving spouse; and
-5- d. As already stated, the trust established hereunder shall be treated as a testamentary
trust created by the last will and testament of Thomas J. Mehen, the Petitioner's
spouse, subject to the provisions governing testamentary trustees under Title 64.2 of
the Code of Virginia.
Respectfully submitted, Thomas C. Mehen
ARR LAW FIRM, A PROFESSIONAL CORPORATION
C._ A / y: ~ UVV'r ~~ H. Farr, VSB No. 27916 Kathleen G. Limjoco VSB No. 37689 Sara B. Entis, VSB No. 42259 Counsel for Petitioners 10640 Main Street, Suite 200 Fairfax, Virginia 22030 Tel: 703-691-1888 Fax: 703-345-9999
-6- !NVENTORY FOn T1WSl (our1 Filt ~O COMMOJ\\HAIIIl or- \WGIJ\IA \ ,\ (00]: ~,,, 642·1Y)(I.\'>4 2·1,10,>;
Cin.:uit COllr1 '..If COUNTY OF FAIRFAX
Elizub~th 1.. tvkhen
Naml.' of Decedent. if In):.! under wj]1 Thomas J rvkhC'JI Tholllas C. MehcD 1 ruslCch) Nulll~(s) OBI/lOll<
This lS!Xl the first inventory r ] I ()!a! \'alue l,f i:lssds listed lfl Pal1s J (lnd 2 (value for bond) 50X,336.,22 rotal valile (If assets listed in Pans J-4 (,f!fO.;;'S \"alue c,j'1rust) $ ATTACH ADDITIONAL SHEETS IF NEEDED Part 1. Trw-.t assets, nol including r('al estate. under )'our supervision and control. DESCRIPTIOJ\ OF PROPERTY \'ALUJ: ~-.~--.~------+--._--_._------ ---_._--- ------~------+------ ~------~------+--..-- - .. -----,----- ----.------~------+------_._- ------.-~------_._---_. TOTAL VALUE OF PART J: 0.00 (Page I 013) I ORM ('CI673 MAS-] ER lO.12 Part 2, Rt'al estate in '"irginia. O\{'1' which you han a pOWln ofsak,. llL,CRll' liON OF PROI'l:R I\, 65.2] {:Co shale i 50:; Dewt1l'rrv Court, McLean. \"/\ 22101 50k,336.22 -'------~ ------.-.-~---.------ --.. -.. -~---.. -----~------.. ------.. ------.. --~------ -- .. -.-----.. -.. ---~-~------.------+------.. - --- .-~---~- -.------~----~------. --~- --.. ------... --~------.. ------___t ----~ ... ~---... -.--.-.-- TOTAL \'ALLE OF PART 2: 50X,336.22 Part 3. Olh('r rt'al estate in Virginia, DLSCRlPTION Of PROPERTY VALUE ~-.~-.-.------~-. ~~-.-.--.----.------ --~----.------ ------.~-- ------~--.--.------~- ------.---.----~--.------f___--.- ~------ ------•..---~~ -.~-~-- ..---- ...- ..--- TOTAL VALeE OF PART 3: 000 Part 4. :\on~Vjrginia rrai f"stat('. Dl:SCRIPTlON OF PROPERTY VALUE --~-.------j------~~ --.-..-- ... ------.~------.---j---~-- ------.--.------.-.-... ----~------i--·.. ---·~------· ..·-- ~---.-----.------.. ------1------.. -----.-.---- -~----~--.-.. ------.... ----~--~------+----.~ ..-- .. ------j------ .-----.------~---- TOTAL VALUE OF PART 4: 0.00 (Page2 01'3) ! 01<.\1 ("("·lb7J MAS·' LR 07.% (ER lIFICAfL (l) ACCURACY AND (OMPLETENFSS i\'lust be ~iglled b) t'llCh Tru:-tce.] I (\\"t) her('"by ccnif: and ilffinJJ under r~flahy of law. (hill to the k:-.f of Illy (our) kIl(lWJedgt and bchd 11l1S ]" Address Telcphon~ )\:(l .. Date 1 [ustce 'I ciephonc No.: ,Date Trustee Address CERTfFICA T1: OF COMMISSIONl:R The Commissioner of Accounts has not indepcndently verifil'd the \-aiue of the items on the in\'entory. or the faci Ihal they are the only assel\ of the Trust. Inspected. found 10 be in proper foml, and appnwcd on Comnllssioner of Accounts Received in the Clerk's Office atld admitted to record on Clerk (page 3 of 3) I ORM {(,-1673 .~1i\Sl LR J 1:'19 FI-2.o 17-.0.0.02256 INVENTORY FOR DECEDENT'S ESTATE Court File No. COMMONWEALTH OF VIRGINIA VA . CODE H 64.2· 1300, 64.2-1308 Circuit Coun of ...... COUNTY OF FAIRFAX Decedent's name ...... Thomas J. Mehen aka Thomas James Mehen Fiduciary(ies) name(s) Michael Mehen Date of fiduciary(s) qualification .. pec~rnber~ , ..2 ..o .I.!. Date of decedent's death Nov~ .l11ber . IQ, 2.017 This is [xl the first inventory [ ] an inventory showing after discovered assets [ ] an amended inventory restating all assets. The fiduciary filing this inventory is [ 1an administrator [ 1an executor [ 1a curator. Total value of assets listed in Parts 1 and 3 (estate for bond) $ ...... 957,812.19 Total value of assets listed in Parts 1, 3, and 4 (estate for probate tax) ... . . $ ...... 957,812...... 19 ATTACH ADDITIONAL SHEETS IF NEEDED Part J. The decedent's personal estate under your supervision and control, valued at the date of death. DESCRIPTION OF PROPERTY VALUE BB&T Money Market '7533 9.0,129.84 2.0.04 Honda Accord Sedan 40 LX 2,900 ..00 84.8788708 shares Chemours (CC) @S5.o.73/sharc 4,3.05.9.0 534.612185 shares Dowdupont, Inc. (DWDP) @S7.o ,12/shorc 37,487 . .01 Promissory Note from Thomas C. Mehen dated February 17, 2017 31,500. .0.0 (original principal amount $36,900.00) Promissory Note from Michael Mehen dated February 17,2.017 11 ,899.44 (original principal amount of S14, 166 ..0.0) TOTAL VALUE OF PART I: 178,222.19 Page I of 4 rORM CC· 1670 MASTER 101 12 Part 2. The decedent's inter-est in multiple party accounts and multiple party certificates of deposit in banks and credit unions valued at the date of death DESCRIPTION OF PROPERTY VALUE TOTAL VALUE OF PART 2: 0.00 Part 3 The decedent's real estate in Virginia over which you bave a power of sale, valued at tbe date of deatb. DESCRIPTION OF PROPERTY VALUE J 505 Dewberry Court, McLean, VA 22 JO J 779,590.00 TOTAL VALUE OF PART 3: 779,590.00 Par14 The decedent's other real estate in Virginia • valued at the date of death. DESCRIPTION OF PROPERTY VALUE TOTAL VALUE OF PART 4: 0.00 Page 2 of4 FORM CC· 1670 (MASTER) 10112 Part S. The decedent's non-Virginia real estate, valued at the date of death. DESCRIPTION OF PROPERTI' VALUE TOTAL VALUE OF PART S: 0.00 CERTIFICATE OF ACCURACY, COMPLETENESS, AND MAILING [Must be signed by each fiduciary.] I. I (we) hereby certify and aflinn under penalty of law, that to be best of my (our) knowledge and belief this is an accurate and complete inventory of this estate made in accordance with my (our) responsibilities under Virginia law . 2. I (we) hereby also certify and .flinn that (cboose one): A. [] On or before the date of filing this Inventory with the Commissioner of Accounts, I (we) sent a copy of it by first class mail to every person entitled to a copy, pursuant to Va. Code Section 64.2-1303, who made a written request therefore . The names and addresses of the persons to whom copies were sent and the dates they were mailed are shown on page 4. or B. [>q No person entitled to a copy of this Inventory purs Date .... ~7;'l7t'.e •.... SIGNATURE OF FIDUCIAR Address ...I .. S.O .S. . !?~\V~erry CERTIFICATE OF COMMISSIONER The Commissioner of Accounts has not independently verified the value of the items on the inventory, or the fact that they are the only assets of the estate . Inspected , found to be in proper fonn, and approved on COMMISSIONER OF ACCO UNTS Received in the Clerk's Office and admitted to record on . I 1C LERK [ 1DEPUTY CLERK Page 3 of4 FORM CC· I()10(MA STE R) 10112 Certificate of Mailing I, the undersigned, do hereby cenif)' that 1 have mailed a copy of the foregoing INVENTORY FOR DECEDENT' S ESTAl E to the following indi viduals on this the .. day of . . ., , 20 EXECUTOR/A.DMINISTRATOR EX ECllTO)UADMrNISTRA TO R EXEClJTQRlADMINISTRATOR Name of Recipient Name of Recipient Address Address City State ZIP City State ZIP f---- - .,-,-----=--,-,---- Name of Recipient Name of Recipient Address Address City State ZIP City State ZIP Name of Recipient Name of Recipient Address Address 1-=------,,---- .---- City State ZIP City State ZIP Page4of4 FORM C('.lb70 IMASTER ) 101 12 EST OF THOMAS J MEHEN '. 129 '. EXC MICHAEL ANDREW MEHEN 68-426f514 1505 DEWBERRY CT V,,' Me LEAN. VA 22101~5630 .' I I :r." ...... ' mrh~:!f~~ -.~.- ,. , ...= ~ ~CHBAN~A"'O Tl'lUSTCOM PANY · ~. • .... 1-aoo-aANK BBT BBT.com ,_ gq..., JiPuu, . ... 1:0 SIol,Ol, 2f,01:0000 10 Sl, 'if, f, 2'13"'00 l. 29 " " , ' ~- ~- .. §)jj(J{ 6)ffl/('( 1/('/ :!!7r:ita /IIelil !I ~111('0J. 9ildw/I I, Thomas J. Mehen, a resident and domiciliary ofYirginia, make, publish and declare this to be my Last Will and Testament, revoking all wills and codicils at any time heretofore made by me. ARTICLE 1. My FAMILY. 1.1. I am married to Elizabeth L. Mehen and we have three children whose names are Thomas Mehen, George Mehen, and Michael Mehen. ARTICLE 2. NON-BENEFICIARY STATUS. 2.1. I have made no provision herein for Elizabeth L. Mehen, my spouse, for reasons that are entirely satisfactory to me. ARTICLE 3. MILITARY BENEFITS. 3.1. I have served in the Anned Forces of the United States. I therefore request that my Executor make appropriate inquiries to ascertain whether there are any benefits to which I, my dependents, or my heirs may be entitled by virtue of any military affiliation. I specifically request that my Executor consult with a retired affairs officer at the nearest military installation, the Department ofYeterans Affairs, and the Social Security Administration. ARTICLE 4. NOMINATION OF EXECUTOR. 4.1. Executor. I nominate Michael Mehen, my son, to be the Executor of this Will. ARTICLE 5. NOMINATION OF TRUSTEE. 5.1. Trustee. I nominate Michael Mehen, my son, to be the Trustee of any trust created under this Will, including any trust for an Under-Age Beneficiary as provided in Article 12 or Special Needs Trust unless otherwise provided in Article 13. ARTICLE 6. PAYMENT OF DEBTS. 6.1. Funeral Expenses. Upon my death my Executor shall paymy funeral expenses or alternatively shall reimburse the person who has provided payment for these expenses without regard to any limitation in applicable local law as to the amount of such expense, and without Court order. Funeral expenses shall include, without limitation, preparation and disposition ofmy remains; acquisition ofa suitable grave site and perpetual care for same; selection, customization and installation of a marker or memorial stone; travel and lodging expenses for my descendants to attend my funeral or memorial service; and other costs associated with funeral and/or memorial services. Payment shall be made from the principal of my Residuary Estate (defined below in Article II). 6.2. Payment and Apportionment of Debts. 6.2.1 . I direct my Executor to pay all my legally enforceable debts, the expenses of my last Last Will and Testament of Thomas J. Mehen ./ , ..----, ./ Of?" /._ ~/~ '-(.-../7_ Signature ~ ~ 'r <- L'::=-:< '" Page I illness, any written charitable pledges, and the expenses of the administration of my estate from the principal of my Residuary Estate. 6.2 .2. I direct my Executor to pay all estate, inheritance, legacy, generation skipping, succession, transfer, and similar taxes (including any interest or penalties thereon) which are imposed by any law with respect to all property taxable under such law by reason of my death, whether such property passes under this Will or otherwise, and whether such taxes are payable by my estate or by the recipient of such property. Payment shall be made from the principal of my Residuary Estate, with no right of reimbursement from the recipient of any such property. This prohibition against reimbursement shall not apply to any right ofrecovery with respect to federal estate tax established by Sections 2207 and 2207a of the skipping transfer tax imposed by Internal Revenue Code Chapter 13 or any corresponding provision of local law ("GST"). 6.3 . Debts That Have Not Yet Matured. Ifany legally enforceable indebtedness (secured or unsecured) is owed by me and has not matured as of the date of my death, I authorize my Executor to pay such indebtedness either in full or in accordance with the tenns of the instrument evidencing such indebtedness, as my Executor deems advisable under the circumstances. 6.4. Real Estate Debt. Any real property (owned solely by me or jointly owned by me and someone else) subject to a mortgage or other encumbrance at the time of my death shall pass subject to such encumbrance, unless otherwise specifically stated herein. ARTICLE 7. DISPOSITION OF JOINT ACCOUNTS. 7.1. During my lifetime I may have established one or more joint financial accounts with one or more persons other than my spouse. I hereby confirm my intention that, in doing so, it was my intent for the named co-owner(s) of each account to become the owner(s) of said account(s) upon my death. ARTICLE 8. DISPOSITION OF TANGIBLE PERSONAL PROPERTY. 8.1. Directive. I may leave with this Will a written statement or list of tangible personal property (hereinafter a "Tangible Personal Property Directive"), which list I may alter from time to time, for the purpose of directing my Executor in the distribution of my tangible personal property, and I require that my Executor honor my wishes therein expressed. 8.2. Any tangible personal property owned by me at the time of my death (including, without limitation, personal effects, clothing, jewelry, furniture, furnishings, household goods, automobiles and other vehicles, together with all insurance policies relating thereto) which is not specifically bequeathed in said Tangible Personal Property Directive I give and bequeath to those of my children who survive me in substantially equal shares (including in such calculation of substantial equality the value of any items distributed pursuant to my Tangible Personal Property Directive), to be distributed among them as they (including any legal Guardian of the Person on behalf of any child under the age of eighteen) shall agree. If my children cannot agree on a distribution, then the Tangible Personal Property shall be divided, distributed, abandoned, donated, and/or sold in my Executor's sole determination and discretion. Alternatively, my Executor may distribute my Tangible Personal Property by means of an auction conducted pursuant to Article 16. 8.3. In my Executor' s sole discretion, any items of tangible personal property not distributed as set forth above may be donated to charitable organizations or liquidated. Any proceeds therefrom shall be distributed as part of my Residuary Estate as set forth in Article II. 8.4. Any costs incurred by my Executor in connection with obtaining possession, appraising, safeguarding, delivering or selling such property shall be paid as expenses of administration. Last Will and T~ ent ,o fTh o m as J. Mehen .....--. 'I s;gna,",¢~ // L ~VZ'('/4,- Page 2 ARTICLE 9. SPECIAL BEQUESTS. 9.1. Digital Property. I give, devise and bequeath all of my digital property (including without limitation files I have created, online accounts which I own, and social media accounts of mine), to my spouse, ifmy spouse survives me. Ifmy spouse does not survive me, I give, devise and bequeath my digital property to my Executor named herein, to use or distribute further, in my Executor's discretion. I direct any persons who administer or control such accounts to cooperate fully with my spouse or Executor as the case may be, to enable access to such digital property and to effectuate the transfer of ownership. 9.2. Miles and Points. I give, devise and bequeath any and all frequent flier miles, hotel "frequent guest" or similar points, restaurant "frequent diner" or similar points, and any points generated by any other type of "reward" or "bonus" program to my Residuary Beneficiaries, in shares substantially proportionate to the distribution specified in Article II. 9.3. College Savings Accounts. If my spouse and I have established any Virginia Prepaid Education Plan accounts, Prepaid Education Arrangement accounts (PEAs), or similar "prepaid tuition" 529 accounts which penn it purchase or units of tuition or which mandate regular contract payments, for any of my children, grandchildren, or any other child, then I wish to ensure that said accounts will be fully funded when they are needed. Accordingly, if my spouse has predeceased me and if any said accounts have not been completely funded at the time of my death, then I direct my Executor to pay whatever amount is necessary from my estate to fully fund said accounts. ARTICLE 10. DISPOSITION OF REAL ESTATE. 10.1. I give and devise all my real estate to my children, in equal shares as tenants in common; ifany child has predeceased me with surviving issue, then I give and devise the deceased child' s share to the deceased child 's issue, in equal shares per stirpes. 10.2. All distribution of real estate hereunder shall be subject to the provisions of Article 12. 10.3. Notwithstanding any provision in Article 6 relating to payment of existing debts, all real estate passing hereunder shall pass subject to any and all mortgage liens and/or deed of trust liens against said real estate. 10.4. Provided that all beneficiaries of a particular parcel of real estate are age 25 or older at the time of my death, said parcel of real estate shall convey to said beneficiaries directly by virtue of this Last Will and Testament and my Executor shall not have the power of sale with respect to any such real estate, despite the provisions in Article IS regarding the powers of my Executor. 10.5. If, however, any beneficiary of a particular parcel of real estate is under the age of25 at the time of my death, then said parcel of real estate shall not convey to said beneficiaries nor shall title vest in any of said beneficiaries by virtue of this Last Will and Testament, but rather I direct my Executor to sell said parcel of real estate and distribute the net proceeds to the beneficiaries of said parcel. All expenses in connection with such sale (including, without limitation, advertising expenses, real estate broker commission, and repairs or improvements deemed necessary or desirable by my Executor), and all expenses for maintaining said real estate prior to such sale (including, without limitation, mortgage payments, taxes, insurance, and utilities) shall be paid as expenses of administering my estate. ARTICLE 11. RESIDUARY ESTATE. 11.1. I give, devise and bequeath all the rest, residue and remainder of my property and estate that I own, or to which I shall in any manner be entitled at the time of my death, both real and personal, of whatever kind and wherever located (my "Residuary Estate"), to my children, in equal shares. If any Page 3 child has predeceased me with surviving issue, then I give and devise the deceased child's share to the deceased child's issue, in equal shares per stilpes. 11 .2. If no issue survives me, then my Residuary Estate shall be distributed to my siblings, in equal shares per stirpes . 11.3. If none of the above-named relatives survive me, then my entire Residuary Estate shall be distributed to one or more charitable organizations chosen by my Executor, keeping in mind the specific charities and types of charities that I have supported during my lifetime. ARTICLE 12. PROPERTY VESTING IN UNDER-AGE BENEFICIARIES. 12.1. Creation of Trust. If any property of my estate with a value in excess of One Hundred Thousand Dollars ($100,000.00) vests in absolute ownership in a beneficiary who is under the age of 25 but is not a child of mine, I direct my Trustee to hold such distribution in a separate trust for such beneficiary subject to the following provisions: 12.1.1 . My Trustee shall hold, manage, invest and reinvest the assets of such trust and shall pay so much or all of the net income and principal from such trust to or for such beneficiary'S benefit, for his or her health, education, maintenance and support, to such extent and at such time or times and in such manner as may be determined in my Trustee' s absolute discretion. Any net income not so paid shall be accumulated and added to principal at least annually. 12.1.2. Without limiting my Trustee's discretion, it is my intent that this trust fund be preserved until trust termination, and therefore I direct my Trustee, when appropriate, to make loans to the beneficiary and to purchase assets for the use of the beneficiary, rather than make outright distributions to the beneficiary. 12.1.3. My Trustee shall distribute the remainder of said funds to the beneficiary when the beneficiary attains the age of 25, discharged of trust. If such beneficiary dies before all trust funds are distributed, I direct my Trustee to distribute any remaining trust funds which are not exempt from generation-skipping tax (including any accumulated income) to such of my descendants, and to any creditors of such beneficiary' s estate (and to no other persons) as such beneficiary shall have appointed by specific reference to this general testamentary power of appointment in such beneficiary'S Last Will and Testament. To the extent any assets of this trust subject to said testamentary power of appointment shall not be validly appointed, and to the extent any such assets are exempt from generation-skipping tax, my Trustee shall distribute such assets: 12.1.3.1. To such beneficiary's then-living descendants, per stirpes; or if none, 12.1.3.2. To the then-living descendants of such beneficiary's parents, per stirpes, or if none, 12.1.3.3. To my then-living descendants, per stirpes, provided that distributions to any such descendants shall be made subject to any further trust then existing or established hereunder. 12.2. Payment to College Savings Account. If any property of my estate with a value of less than One Hundred Thousand Dollars ($100,000.00) becomes payable directly to a beneficiary who is under the age of 25 but is not a child of mine, I direct my Executor, without need of court authorization, to distribute to a College Savings Account the whole of such property, up to the maximum lifetime contribution allowed by law. last W;II '~t of Thorn" 1. Mchen / s;gn atu ,{7/~?~ 9~ c Page 4 12.2. 1. If a College Savings Account already exists for the beneficiary, then I authorize my Executor to distribute said funds to said existing College Savings Account. Alternatively, my Executor may establish, in my Executor's sole discretion, one or more additional College Savings Accounts and may detennine, in my Executor's sole discretion, who shall be nanled as the "Owner" / "Contributor" of each College Savings Account (presumably the Executor, as an individual, unless another proper and competent adult is able and willing, in my Executor's sole discretion, to act as such). It is my intent that the funds in the College Savings Account be used for education, including tuition, fees, room and board, books, supplies, and computers, subject to any limitations imposed by the College Savings Account program. 12.2.2. I understand: 12.2.2 .1. That the person named as "Owner"/ "Contributor" of a College Savings Account may have the legal right, under the rules of the 529 program, to cancel the College Savings Account at any time and for any reason; 12.2.2.2. That if the Account is cancelled for a reason other than a qualified rollover or the plan beneficiary'S death, disability or receipt of a scholarship, federal income tax may be due on the earnings portion of the refund; and 12.2.2.3. That non-qualified distributions may be subject to a federal tax penalty of I 0% of the earnings, reported on the federal tax return of the "Owner"/ "Contributor. " 12.2.3. Notwithstanding the above, it is my intent that my named beneficiary be the actual beneficial owner of any College Savings Account that has been established hereunder for that beneficiary. Accordingly, if a beneficiary' s College Savings Account, established hereunder, is ever cancelled, all of the net funds (i.e. , after any taxes and penalties) remaining after said cancellation shall belong to said beneficiary or, if said beneficiary has predeceased said cancellation, then to said beneficiary's issue, in equal shares per stirpes. 12 .2.4. If the property payable to the beneficiary exceeds the maximum lifetime contribution allowed to go into a College Savings Account for said beneficiary, then without need of court authorization my Executor may: 12 .2 .4. 1. Distribute the whole or any part of such property to a custodian for the beneficiary under any gifts to minors or transfers to minors act; 12.2.4.2. Distribute the whole or any part of such property to the person or persons with whom the beneficiary resides to use for the beneficiary; or 12.2.4.3. Hold the same as a separate fund for the beneficiary's benefit, with all powers granted to trustees under this document and under Virginia law; use the whole or any part for the health, education, maintenance and support of said beneficiary; and pay the remainder of said funds to the beneficiary when the beneficiary attains the age of 25. If the beneficiary dies before attaining said age, any remaining balance shall be paid and distributed to said beneficiary'S children, if any, in equal shares per stirpes, or if none, then to my living Residuary Beneficiaries as set forth in Article I I. 12.2.4.4. Evidence of any such distribution or the receipt therefor executed by the person to whom the distribution is made shall be a full discharge of my Executor from any liability with respect thereto, even though my Executor may be such person. Page 5 ARTICLE 13. DISTRIBUTIONS TO DISABLED OR INCAPACITATED BENEFICIARIES. 13.1. Creation of Trust. If any beneficiary of my estate, at the intended time of any distribution hereunder, is disabled or incapacitated as defined in Article 19 hereof, and/or is disabled or incapacitated as defined in Section 1614(a)(3) of the Social Security Act (as detennined by the Social Security Administration or by any State-level disability detennination agency operating under the auspices of the Social Security Administration), then said beneficiary shall cease to be a regular beneficiary of this Will. Instead, said beneficiary shall hereinafter be referred to as a "Special Needs Beneficiary," and said Special Needs Beneficiary' s intended distribution shall be distributed instead to my Trustee as a Special Needs Trust ("SNT"), to be governed by the tenns and provisions set forth in this Article 13. 13 . 1.1 . The Trustee shall not be personally liable for any loss of public benefits provided the Trustee at all times acts in good faith, reasonably consistent with the tenns of the SNT. The Trustee shall not be liable to any Special Needs Beneficiary, to any remainder beneficiaries, or to any other party, for acts undertaken by the Trustee in good faith . 13.1.2. Additiollal Assistallce. 13.1.2.1. I direct the Trustee to seek the counsel and assistance of the guardian or conservator of any Special Needs Beneficiary, or of any state or local agencies which are established to help disabled or incapacitated persons. The Trustee may also seek professional assistance in identifying programs that may benefit a Special Needs Beneficiary, including without limitation enhancement of social, financial, developmental, or educational skills. The Trustee shall not be liable for failure to identify all programs or resources that may be available to a Special Needs Beneficiary. 13.1.2.2. The Trustee is authorized to solicit the advice and retain the services of any persons or organizations the Trustee deems advisable to protect the integrity of the SNTand/or for the benefit ofa Special Needs Beneficiary. Such persons or organizations may include, without limitation, attorneys, accountants, investment advisors, daily money managers, care managers, social workers, life care planners, psychologists, psychiatrists, and any other appropriate advocates, agents, or health care professionals. Any expenses of the Trustee in this regard shall be a proper charge to the SNT, and shall not decrease the compensation of the Trustee. 13 .1.2.3. Ifthe Trustee is not a special needs planning attorney, then at least annually the Trustee should consult with an experienced special needs planning attorney to review changes in state and federal legislation and regulations, and to ensure that a Special Needs Beneficiary's public benefits eligibility is not inadvertently jeopardized by actions taken or distributions made by the Trustee. 13 .2. Purpose. 13.2.1. The purpose of the SNT is to supplement, but not to supplant, whatever benefits and services the Special Needs Beneficiary may be eligible to receive from time to time by reason of age, disability, incapacity, or other factors, from federal, state, and local governmental and charitable sources. It is understood and acknowledged that such governmental and charitable programs, in themselves, contain many gaps that, if unaddressed, will greatly reduce the possibility of the Special Needs Beneficiary' s Page 6 maintaining himselfiherself as independently as possible and having the capacity to meet hislher future needs. 13 .2.2. It is my intent that my Trustee use the principal and income from this SNT to provide the Special Needs Beneficiary with those benefits and services, and only those benefits and services, that in my Trustee' s judgment are not otherwise available to the Special Needs Beneficiary from other sources as or when needed for hislher welfare. My Trustee may supplement any benefits received (or for which the Special Needs Beneficiary may be eligible) through or from various governmental assistance programs, but may not make any distributions to the Special Needs Beneficiary which would reduce the Special Needs Beneficiary's eligibility for benefits. All actions of my Trustee shall be directed toward carrying out this intent. The Special Needs Beneficiary shall not be considered to have access to principal or income of the trust. Without limiting the discretion of my Trustee to take whatever actions my Trustee may consider necessary for the Special Needs Beneficiary' s welfare, in accordance with the trust purposes, it is intended that the trust be used in ways that will best enable the Special Needs Beneficiary to lead as normal, comfortable, and fulfilling a life as possible. My Trustee, in my Trustee' s sole and absolute discretion, shall pay to or for the benefit of the Special Needs Beneficiary, so much of the net income and principal as is necessary to meet the Special Needs Beneficiary' s special needs, in keeping with the directives of this section. Any income not so distributed shall be added to principal. 13.3. "Special Needs" Defined. As used herein, "special needs" refers to the requisites for maintaining the Special Needs Beneficiary's comfort, and happiness when, in the Trustee's discretion, such requisites are not being provided by any public agency, office, or department of the Special Needs Beneficiary' s state or residence or of any other state, or of the United Stales. "Special needs" includes, but is not limited to: 13.3.1. Medical alld Delllal Care. Medical, dental or diagnostic work or other treatment for which funds are not otherwise available, including, but not limited to, cosmetic or plastic surgery or other non-necessary medical procedures, dental braces, dentures, optical care, eyeglasses, non-traditional or experimental medical treatments or procedures, private rehabilitative care, and psychological or psychiatric therapy. 13.3.2. Traillillg. Training, education, treatment, and rehabilitation programs and services. 13.3 .3. Professiollal Services. Costs for the services of care managers, geriatric care manager, registered or practical nurses, aides or caregivers, attorneys, and accountants, and other appropriate professional service providers. 13.3.4. Persollal alld Elltertaillmelll Services. Costs of recreation, including vacations and attending family gatherings, theatrical performances, films, festivals, athletic contests and similar events; electronic equipment including but not limited to cordless telephones, audio or video equipment of all kinds, video game consoles and software, televisions, computer equipment, and appropriate broadcast, cable, subscription, or wireless services required to use the equipment. 13.3.5. Trallsportatioll alld Mobility Services. Costs of transportation, such as purchase of a new or specially equipped vehicle or other transportation device, modification of an existing vehicle, wheelchairs and other ambulatory aids, ramps, and lifts. 13.3.6. Other. Costs of any other non-essential items that may serve to enhance the Special Needs u.S! W;1I and Testament or Thomas J. Mehen ~ s; gnat"'~ ' '-P~ Page 7 Beneficiary's comfort or well-being. 13.4. Distribution Guidelines. 13.4.1. The Trustee of this SNT may distribute so much income and principal of this SNT for the benefit of the Special Needs Beneficiary as the Trustee may, in the Trustee's sole and absolute discretion, detennine in order to provide for the "special needs" of the Special Needs Beneficiary as defined above. Sometimes, the Trustee may choose to make no distributions at all. 13.4.2. No part of the assets or income of this SNT shall be used to supplant or replace or reimburse public assistance benefits of any county, state, federal or other govenunent agency that has a legal responsibility to serve persons with disabilities which are the same as or similar to those of the Special Needs Beneficiary. This includes, but is not limited to, Supplemental Security Income and Medicaid. For purposes of detennining the Special Needs Beneficiary'S eligibility for any such benefits, no part of the principal or income of the SNT shall be considered available to the Special Needs Beneficiary. 13.4.3. All the tenns of this trust, wherever they may appear, shall be interpreted to confonn to this primary goal, namely that the Special Needs Beneficiary continue to receive the maximum level of govenunental assistance for which the Special Needs Beneficiary is eligible. 13.4.4. If the Trustee is requested to release principal or income of the SNT on behalf of the Special Needs Beneficiary to pay for equipment, medication or services which a govenunent agency is authorized to provide (were it not for the existence of this SNT), or ifthe Trustee is requested to petition the court or any other administrative or judicial agency for the release of SNT principal or income for this purpose, the Trustee is authorized to deny such request and is authorized, in the Trustee' s discretion, to take whatever administrative or judicial steps are necessary to continue the Special Needs Beneficiary'S eligibility for benefits, including obtaining instructions from a court of competent jurisdiction ruling that the SNT corpus is not available to the Special Needs Beneficiary for eligibility purposes, and obtaining judicial refonnation of the SNT if necessary. Any expenses of the Trustee in this regard, including reasonable attorney's fees , shall be a proper charge to the SNT. 13.4.5. Notwithstanding the foregoing provisions, ifthe Trustee, in the Trustee's sole and absolute discretion, detennines after consultation with a Certified Elder Law Attorney that it is in the best interest of the Special Needs Beneficiary to provide some amount of in-kind support and maintenance (i. e., food and/or shelter) to the Special Needs Beneficiary, then the Trustee may do so, in the Trustee's sole and absolute discretion. 13.4.6. In making any distribution hereunder, the Trustee shall be guided by the following distribution guidelines: 13.4.6.1. Consideration of all income and resources known to the Trustee and reasonably available to the Special Needs Beneficiary; 13.4.6.2. Consideration of all available benefits from any government agency, such as Supplemental Social Security Income (SSI), Medicaid, Social Security Disability Income (SSDI), Food Stamps, Medicare, and other special purpose benefits for which the Special Needs Beneficiary is eligible; Page 8 13.4.6.3. Consideration of the resource and income limitations of all applicable assistance programs; 13.4.6.4. Striving to make expenditures to provide a comfortable standard of living for the Special Needs Beneficiary, though not being obligated or compelled to make such expenditures. 13 .5. Termination. 13.5 .1. The SNT shall terminate upon the death of the Special Needs Beneficiary. 13.5.2. At tennination of the SNT the Trustee shall wind up the affairs of the SNT before making distribution, to include, without limitation, payment of the Special Needs Beneficiary's funeral and burial expenses, providing a final written Trustee's report, and completion of other duties and filing of documents associated with normal trust termination, including preparation of a final trust fiduciary income tax return. 13.5 .3. After winding up the SNT, the Trustee shall allocate the remaining principal and any accrued or collected but undistributed income as provided in Article II hereof. 13.6. Early Termination. If at any time the principal of the SNT is less than $100,000, in my Trustee's sole discretion the Trustee may pay and distribute the entire principal of the SNT and all accrued and undistributed income to a third-party pooled special needs trust, and the SNT created hereunder shall thereupon terminate. ARTICLE 14. PROCEEDINGS INVOLVING INCAPACITATED OR DISABLED PERSONS. 14.1. I direct that in any proceeding involving my estate it shall not be necessary to serve process upon, or to make a party to the proceeding, any incapacitated or disabled person if another party to the proceeding who is not incapacitated or disabled has the same interest as the incapacitated or disabled person. The written approval by all of the then living adult beneficiaries of this Will of any matter relating to the administration of my estate, whether the same relates to an accounting or any other action taken or omitted or proposed to be taken or omitted by my Executor, shall be deemed to be the approval of and shall be binding upon all beneficiaries hereunder, including those who are minors or are not yet born at the time of such action. ARTICLE 15. GENERAL POWERS AND DUTIES OF EXECUTOR AND TRUSTEE. 15.1. Definition. The term "Executor" wherever used herein shall mean the Executors, Executor, in office at any given time. The term "Trustee" wherever used herein shall mean the trustees or trustee in office at any time and from time to time. If any bank, trust company, or similar institution serving as Executor or Trustee merges or is acquired by another entity, such corporate successor shall automatically be substituted as Executor or Trustee hereunder. 15.2. Bond. No Executor or Trustee named herein shall be required to file or furnish any bond, surety, or other security in any jurisdiction. 15.3. Prior Actions. No successor Executor or Trustee named herein shall be responsible for, or shall be required to inquire into, any fiduciary actions occurring prior to said successor' s appointment hereunder. 15.4. Appointment of Co-Fiduciary or Resident Agent. Ifmy Executor or my Trustee (a "Fiduciary") is not a resident of Virginia at the time of qualification hereunder, I authorize such Fiduciary to: 15.4.1. Appoint any person residing in Virginia, or any organization pennitted to provide fiduciary Last Will and Testament of Thomas J. Mehen Signatu« ;;;J/~"-~?~y/9 (:;?;~ Page 9 services in Virginia, to serve as co-fiduciary for the purpose of pennitting my Fiduciary to quality as Executor or Trustee, as the case may be, without the requirement of obtaining surety; or 15.4.2. Appoint any person residing in Virginia to serve as a resident agent for service of process. 15.5. Compensation. 15.5.1. Expenses. All persons serving as Executor or Trustee are entitled to reimbursement for expenses incurred on behalf of my estate or any Trust established by this Will. 15 .5.2. Services. Any individual serving as Executor or Trustee shall be entitled to, but may waive, reasonable compensation for services in administering this Will or any Trust established by this Will. Any professional or corporation (such as a bank or trust company) serving as Executor or Trustee shall charge its normal hourly rate for services, or receive compensation based upon a fee schedule applicable when such compensation is payable. 15.6. Jurisdictional Powers. I grant to my Executor, all Successor Executors named in Article 4, and any successor thereto, all powers conferred on Executors under Code Section 64.2-105, as amended, or any successor thereto, and all statutory powers conferred upon Executors wherever my Executor may act; and to my Trustee, all Successor Trustees named in Article 5, and any successor thereto (including all Trustees and Successor Trustees of any sub·trusts or Special Needs Trusts created hereunder), all powers conferred on trustees under Section 64.2·105 of the Code of Virginia, and all statutory powers conferred upon Executors and trustees respectively whenever and wherever my Executor or Trustee may act. 15.7. Enumerated Powers. 15.7.1. Property. I grant to my Executor and Trustee the power to retain, sell at public or private sale, exchange, grant options on, invest and reinvest, and otherwise deal with, any kind of property, real or personal, for cash or on credit; hold, manage, insure, repair, improve, demolish, divide, lease for any term (whether or not beyond any period fixed by statute for leases made by fiduciaries or beyond the term of any trust created hereunder), and otherwise deal with and dispose of any property; borrow money and mortgage, encumber or pledge any property to secure loans; hold property in bearer form or in the name of a nominee; divide and distribute property in cash or in kind; render liquid my estate or any trust in whole or in part, at any time and from time to time, and to hold cash or readily marketable securities of little or no yield for such periods as my Trustee shall deem advisable; and exercise all powers of an absolute owner of property. 15.7.2. Business Interests. I grant to my Executor and Trustee the power to incorporate any business and hold any interests in corporations; vote stock or securities, in person or by proxy; exercise subscription and conversion rights, and participate or refuse to participate in any reorganization, recapitalization, merger, consolidation, liquidation, dissolution, or other action with respect to any corporation; and transfer any business or property to a partnership and be a general or limited partner. 15.7.3. Retirement Accounts. If my estate or any trust established by this Will is named as beneficiary of a retirement plan account, I authorize my Executor and/or my Trustee (consistent with the interests of my trust beneficiaries) to create a special trust account as part of such trust and conform the provisions of the special trust account to make such trust an acceptable beneficiary of the retirement plan account within the meaning of applicable Page 10 Internal Revenue Service regulations. The provisions of the special trust account shall be irrevocably stated as of the date of my death, and shall confonn to requirements of state and federal law applicable to all trusts that are beneficiaries of retirement plan accounts, including without limitation any requirement to provide a copy of the trust account provisions to the plan administrator, and other reporting requirements. Consistent with such state and federal law, I authorize my Trustee to change the tenns of the special trust account as permitted by applicable rules and as minimally necessary to conform to changes in the rules applicable to trusts that are beneficiaries of retirement plan accounts. 15.7.4. Digital Account~~ I authorize my Executor and/or my Trustee to receive and inspect information pertaining to my use of any electronic communications service or remote computing service, as those terms are defined in Virginia Code §64.2-1 09, including, if available, information that identifies the person(s) with whom I have engaged in electronic communication, the time and date of the communication(s), and the electronic address of the person(s). I authorize my Executor and/or my Trustee to receive and inspect the contents of any such electronic communication, including the substance, purport, or meaning of the communication and the subject line ofa communication. 15.7.5. Miscellaneous. I grant to my Executor and Trustee the power to compromise and release claims with or without consideration; execute and deliver deeds and other instruments, including releases; and employ attorneys, accountants and other persons for services or advice. ARTICLE 16. SPECIFIC POWERS AND DUTIES OF EXECUTOR. 16.1. Tangible Personal Property Auction. If my Executor is directed or permitted elsewhere in this Will to distribute tangible personal property by auction, said auction may be conducted using the method described below. Alternatively, my Executor may use an online service, such as edivvy up.com, to provide an equitable method for distribution. 16. I .1. My Executor shall allot to each Beneficiary ("TPP Beneficiary") I 00 points with which to bid on my Tangible Personal Property. My Executor shall arrange for said auction to be held at a reasonable time and place; send all TPP Beneficiaries a written notice of the time and place of said auction at least ten (10) days in advance of said auction; preside at the auction and have sole discretion for determining the order of items to be auctioned; and award each i tern to the highest bidder. 16.1.2. My Executor shall announce to all TPP Beneficiaries, and shall abide by, the following rules: 16.1.2.1. Each TPP Beneficiary may bid only with the points allotted. 16.1.2.2. Unused points shall have no value. 16.1.2.3. If Tangible Personal Property remains after all TPP Beneficiaries have used up all their respective points, then my Executor may allot an equal number of additional points to each TPP Beneficiary. 16.1.3. Final Distribution. Any remaining Tangible Personal Property may be donated by my Executor to charitable organizations or liquidated; net proceeds of liquidation shall be distributed as part of my Residuary Estate. 16.1.4. Reimbursement oleosts. Any costs incurred by my Executor in connection with obtaining Page 11 possession of, appraising, safeguarding, delivering, or selling my Tangible Personal Property shall be paid as expenses of estate administration. 16.2. Taxes. In connection with the preparation of any tax return for me or my estate, I authorize my Executor to: 16.2.1. Detennine whether to elect to qualify any property as qualified tenninable interest property for Federal and/or State estate tax purposes; 16.2.2. Make any election available under Code Section 2652(a)(3) with respect to qualified tenninable interest property as my Executor may deem advisable; 16.2.3. Make any election available with respect to Code Chapter 13 to allocate the same to property eligible for such allocation, whether or not such property is held hereunder, including property transferred by me during my life as to which I did not make an allocation prior to my death, in such amounts and proportions as my Executor may deem advisable; 16.2.4. Detennine whether to include or exclude any item of property; 16.2.5. Detennine within pennitted limits the date of valuation of my estate; 16.2.6. Detennine whether certain deductions shall be taken as income tax deductions or estate tax deductions; and 16.2.7. Detennine whether to adjust between principal and income. 16.3. Accounting and Inventory. To the maximum extent pennitted by law, I hereby waive any requirement that my Executor be supervised by any court or be required to file any inventories and/or accounts with such court. ARTICLE 17. SPECIFIC POWERS AND DUTIES OF TRUSTEE. 17.1. Appointment of Additional Trustees. The last acting Trustee may designate any individual or institution as a Co-Trustee (after first offering the position, in order of priority, to the persons named in Article 5) by a written instrument, signed by the last acting Trustee and evidencing the designee' s consent to serve as Trustee. The last acting Trustee may waive any applicable bond and place any appropriate conditions or limitations on the Trustee so designated, including specifying the circumstances under which the designated Trustee may be removed (in addition to those already provided for herein). Except as expressly limited in the instrument of appointment, each successor Trustee shall have the same title, powers and duties as the Trustee succeeded, without any additional conveyance. 17.2. Appointment of Additional Co-Trustees. A Co-Trustee appointed by a Trustee shall serve only as long as the Trustee who appointed such Co-Trustee (or, if such Co-Trustee was named by more than one Trustee acting together, as long as the last to serve of such Trustees), and such Co-Trustee shall not become a successor Trustee upon the death, resignation, or incapacity of the Trustee(s) who appointed such Co-Trustee, unless such Co-Trustee is also named as successor Trustee hereunder. If two Co-Trustees are authorized to act, in the absence of a delegation by one to the other or a recusal of one of the Co-Trustees, both Co-Trustees must act unanimously. In the event of a deadlock, the vote of the person who is the next named successor Trustee hereunder shall be sufficient to break the deadlock. If there are three or more Co-Trustees, the act of the majority of the Co-Trustees shall be the act of the Trustee, provided that no dissenting Co-Trustee shall be accountable for any act of which such Co-Trustee disapproves. Page 12 17.3. Appointment of Independent Trustee. No Trustee shall participate, directly or indirectly, in any exercise of discretion to make a distribution to or for such trustee's own benefit, except as provided for herein and subject only to an "ascertainable standard" within the meaning of federal estate and gift tax rules. No Trustee shall participate, directly or indirectly, in the exercise ofdiscretion to make a distribution to or for the benefit of any person in discharge of such Trustee's own obligation of legal support. Trustees who are beneficiaries ofother trust shares shall be prohibited from exercising reciprocal powers to make trust distributions for the benefit of other Trustees who are beneficiaries of other trust shares. Ifat any time all of the Trustees shall be precluded from exercising a discretion otherwise granted the Trustee, an Independent Trustee may be named by the acting Trustee(s) as an additional Trustee, with the sole authority to exercise such discretion. An "Independent Trustee" is defined as a person (induding a corporation authorized to perform trust services) who is not a present or contingent beneficiary of any trust share and who is neither related nor subordinate (within the meaning of Code Section 672(c» to any beneficiary or any person appointing such Independent Trustee. 17.4. Appointment of Successor Trustee by Beneficiaries. If at any time no Trustee or Successor Trustee is willing and able to serve, the beneficiaries may appoint a Successor Trustee. The Trustee so selected may be a corporate Trustee, not subject to the control of any beneficiary, either directly or by attribution as set forth in the relevant sections of the Code. 17.5. Resignation of Trustee. Any Trustee may resign at any time by giving at least thirty (30) days advance written notice of said Trustee's intention to do so, such notice to be delivered in person, by certified mail, or by overnight delivery service to the remaining Trustee, or if none, then to the Successor Trustee and at least one beneficiary. 17.6. Accounting. My Trustee shall at all times maintain proper books and records reflecting all income, disbursements, and other transactions of any trust created by this Will, and shall make such books and records accessible to any beneficiaries at reasonable times and upon reasonable notice. 17.7. Reporting. 17.7.1. My Trustee shall keep all beneficiaries of any trust reasonably informed with respect to administration of the trust and any material facts which will enable them to protect their interests, and shall promptly respond to their reasonable requests for information. 17.7.2. Within sixty (60) days of accepting a trusteeship, a new Trustee shall provide all beneficiaries with contact information in writing. 17.7.3. Within sixty (60) days after my Trustee learns of the creation of an irrevocable trust or that a formerly revocable trust has become irrevocable for any reason, my Trustee shall notifY them of the trust's existence and their right to receive a copy of the trust instrument and/or a copy of a trustee's report. 17.7.4. Pursuant to Virginia Code Section 64.2-1300, as amended, my Trustee shall not be required to file with or furnish to any court or judicial entity any accountings of proceedings, or any inventory of property which may come into my Trustee's possession, provided that within 90 days my Trustee notifies in writing all adult beneficiaries whose addresses are known to my Trustee and who may be entitled to receive income or principal from a trust; provides each with a copy of the applicable provisions of this Will; advises each of his or her right to require an annual accounting; provides each with a copy of Virginia Code Section 64.2-1300; and annually thereafter provides each such beneficiary an accounting upon request. My Trustee may either send a copy of the notice given to each beneficiary or file a writing with the commissioner stating that the requirements of Virginia Code Section 64.2-1300 have been met. My Trustee shall not be required to have any ~SI Will and Teswm ':/77 J. Mchen / O~ Signalu,. ~~ L-~ Page 13 account judicially approved, but nothing herein shall be construed as limiting my Trustee's right or any beneficiary' s right to seek a judicial settlement of an account. 17.S. Payment of Income and Principal. The determination of my Trustee as to the amount or advisability of any discretionary payment of income or principal from any trust hereunder shall be final and conclusive on all persons, whether or not then in being, having or claiming any interest in such trust. Upon making any such payment, my Trustee shall be released fully from all further liability therefor. 17.9. Encumbrances. No disposition, charge or encumbrance on any income or principal of any trust hereunder by any beneficiary thereof shall be valid or binding upon my Trustee. No beneficiary shall have the right to assign, transfer, encumber, or otherwise dispose of any such income or principal until the same shall be paid to such beneficiary by my Trustee. No such income or principal shall be subject in any manner to any claim of any creditor of any beneficiary. ARTICLE 18. TRUST ADMINISTRATION. IS.I. Spendthrift Provision. No rights to income or principal of any beneficiary hereunder shall be subject to assignment or anticipation, nor shall they be liable for any indebtedness or obligation of any beneficiary or subject to attachment or any other order or process of Court; except in making a discretionary distribution "for the benefit" of a beneficiary, my Trustee shall be prohibited from making any distribution to any assignee or creditor of any beneficiary, nor otherwise than into the hands of the beneficiary, in person. In the event of any impending, threatened or attempted sale, pledge, assignment, attachment, execution or claim of or against trust income or principal resulting from an act or liability of a beneficiary or beneficiaries of any trust hereunder, whether voluntary or involuntary, by operation oflaw, bankruptcy or otherwise ("Distribution Suspension Event"), any Trustee shall be authorized to withhold from such beneficiary or beneficiaries all or any part of a distribution of income or principal, otherwise payable hereunder to such beneficiary or beneficiaries, until the earlier to occur of the termination of any such beneficiary' s trust interest or the disappearance or removal of the Distribution Suspension Event, provided, however, that the said Trustee's discretion hereunder shall not be exercised as to income distributions from the Trust that are required to preserve qualification of assets that are to be or have been qualified for the marital deduction from federal estate tax. During the pendency of a Distribution Suspension Event, the following additional provisions shall apply: IS.I.I . Any power of appointment granted to such beneficiary over assets in this trust shall be exercisable only with the approval of an Independent Trustee (defined for this purpose as a Trustee who is not appointed by a beneficiary of the affected trust, who is not a beneficiary of such trust and who is not related nor subordinate to any trust beneficiary within the meaning of Code Section 672(c)). IS.I.2. Any income withheld shall be added to principal. IS.I.3. The Independent Trustee shall be authorized, in its sole discretion, to make distributions to or for the benefit of the beneficiary, and to the beneficiary'S spouse and/or one or more of the beneficiary'S descendants if, in the said Trustee's judgment, such distributions would be consistent with my overall intention to benefit the persons named herein. If the beneficiary is or may be eligible to qualify for government assistance, the said Independent Trustee may make arrangements to pay an amount otherwise payable to such a beneficiary to the trustee of newly-established trust or other sub-account of this trust with new terms, conditions, and/or limitations calculated to preserve the beneficiary'S eligibility or qualification for government assistance. IS.2. Change of Situs. The Trustee may at any time select a new situs of governing law for the trust, the location of trust property, and/or the law to be applied, which in the Trustee' s sole opinion best Page 14 carries out my purposes, all without Court order or approval. My Trustee may amend this Trust to confonn to local law and/or to the requirements of a new corporate trustee, provided that under no circumstances may the exercise of this power result in a material change to the beneficial interests granted herein. My Trustee, in its sole discretion, may detennine the situs of this trust for income tax purposes from time to time, and may file fiduciary income tax returns in such jurisdictions as my Trustee shall detennine. 18.3. Rule Against Perpetuities. It is my intent that all trusts hereunder shall be fully exempted from the Rule Against Perpetuities or any similar rule with respect to remoteness in vesting. If it is detennined that any provision of this trust violates any applicable rule against perpetuities or remoteness in vesting, my Trustee shall administer the affected portion for the maximum period allowed by law, and then distribute that portion of the trust property outright and free of trust to the then-living person(s) entitled to the trust's income. ARTICLE 19. DEFINITIONS. 19.1. Beneficiary is a person who has a present or future beneficial interest in a trust or holds a power of appointment over trust property in a capacity other than as trustee. 19.2. Children. The tenns child, children, and issue, as used in this Will, include not only the currently living child, children, and issue of the person designated, but also the legally adopted child, children and issue of such person, including any child, children or issue born or adopted after the date of execution of this Will, with the exception of any child whose adoption became final after the child attained the age of eighteen (18). If the legal relationship between a parent and child is tenninated by a court while the parent is alive, that child and that child's issue will not be regarded as issue of that parent. Ifa parent dies and the legal relationship with the parent's child had not been tenninated before the parent's death, the child and the child' s issue will still be regarded as issue of the deceased parent even if the child is later adopted by another person. 19.3. Code means the Internal Revenue Code of 1986, as amended, and all regulations promulgated thereunder. All tax-related tenns used herein shall have the meanings contained in the Code. 19.4. College Savings Accounts (also called "529 Accounts") are accounts established for specific beneficiaries that meet certain criteria for qualified tuition programs under Code Section 529. These programs allow tax-free savings to be used for the beneficiary's educational expenses, including tuition, fees, room and board, books, supplies, and computers, subject to limitations imposed by each 529 program. 19.5. Disability. For purposes of this Last Will and Testament, any person may be conclusively detennined to be "disabled" or under a "disability" by anyone of the following methods: 19.5.1. The individual has been detennined to be disabled (as defined in Section 1614(a)(3) of the Social Security Act) by the Social Security Administration or by any State-level disability detennination agency operating under the auspices of the Social Security Administration; 19.5.2. The individual has been detennined by a nursing home or State agency to be medically eligible for nursing home care; 19.5.3. The individual is defined in this Last Will and Testament as a "Special Needs Beneficiary." 19.6. Education is limited to: 19.6.1. College: Any course of study or instruction at an accredited college or university granting undergraduate or graduate degrees. 19.6.2. Vocational: Any course of study or instruction at any institution for specialized, vocational or professional training. Page 15 19.6.3. General: Any curriculum offered by any institution that is recognized by any state or federal agency or program for purposes of recei ving financial assistance from that agency or program. 19.6.4. Course of Study: Any course of study or instruction which may be useful in preparing a beneficiary for any vocation consistent with the beneficiary'S abilities and interests. 19.6.5. Permissible distributions for education include reasonable expenditures for tuition and related fees, books and supplies, living expenses, travel, and spending money. 19.7. Incapacitated; Incapacity. For the purposes of this Last Will and Testament, any individual (including any Trustee) may be conclusively determined to be "incapacitated" by anyone of the following methods: 19.7.1. Physicians'Statements. The individual has been examined by two physicians, or by one physician and one licensed clinical psychologist, and those examining professionals have signed a written statement or statements attesting that in their opinion, the individual is unable to adequately manage his or her legal and financial affairs. In expressing the opinion that the individual is so incapacitated, the professionals shall describe the incapacity in functional terms and state the diagnosis or other reason for the incapacity, together with a prognosis or other statement setting forth when, whether, and the extent to which recovery of capacity can reasonably be expected. 19.7.2. Court Determination. The individual has been adjudicated by a court of competent jurisdiction to be incapacitated, incompetent, or otherwise legally unable to manage his or her legal and financial affairs. 19.8. Per Stirpes. A gift made to a specific beneficiary per stirpes shall mean that if that beneficiary is not surviving at the specified time but has a child or children surviving at the specified time, that child or children shall take the share of the deceased beneficiary. A gift made to my children or my issue (or to a specified class of beneficiaries) "in equal shares per stirpes" shall mean that the gift is first divided among the members of the oldest generation of children or issue (or other class of beneficiaries) who have a member surviving at the specified time, with each living member taking one share and any deceased member's child or children living at the specified time taking the share to which the deceased member would have been entitled; and likewise down the generations. 19.9. Spouse (or similar gender-specific terms such as "husband" and "wife") means the individual to whom a person might be legally married from time to time. The term shall not include an individual from whom a person might be legally divorced under a decree of divorce a vinculo matrimoni or a mensa et thoro, or the equivalent under various state laws, by a court of competent jurisdiction. Further, it shall not include an individual from whom a person might be legally separated under a legal separation agreement, duly signed by a person and the purported "spouse." ARTICLE 20. No OUTSIDE AGREEMENTS. 20.1. 1 affirm that I have not entered into any premarital, marital, or other agreement with my spouse or with any other individual that restricts or controls my right to distribute my estate. Accordingly, I understand that I have the right to modifY or revoke this Last Will and Testament without my spouse's knowledge or consent. I also understand and acknowledge that my spouse's Last Will and Testament can be modified or revoked by my spouse without my knowledge or consent. ARTICLE 21. SIMULTANEOUS DEATH 21.1 . If any beneficiary shall die simultaneously with any other person upon whose death such beneficiary shall become entitled to receive either income or principal under this Will or any trust created hereunder, or in such circumstances as to render it difficult or impracticable to determine who u st W;lIa~ Q~ S'gnaturc C Page 16 predeceased whom, then for purposes of this Will such beneficiary shall be deemed to have predeceased such other person, unless it is clear that such beneficiary survived such other person by more than one hundred twenty (120) hours. 21.2. The provisions of this Will and any Trust created hereunder shall be construed as aforesaid, notwithstanding the provisions of any applicable law establishing a different presumption of order of death, or providing for survivorship for a fixed period as a condition of inheritance of property. ARTICLE 22. BENEFICIARY RESTRICTIONS. 22.1. If any beneficiary under this Will shall contest, obstruct or otherwise resist the probate hereof, or start or join in any proceeding tending to avoid or set aside any provision of this Will, such beneficiary thereby shall forfeit all bequests and rights conferred upon such beneficiary hereunder or under any statute, and this Will shall be given effect in all respects as if such beneficiary had predeceased me. ARTICLE 23. CONSTRUCTION. 23.1. Geflder afld Number. Wherever used herein and the context so requires, the masculine shall include the feminine and the singular shall include the plural, and vice versa. 23.2. Headiflgs. The headings in this Will are for convenience of reference, and they shall not be considered when construing this document. 23.3 . Severability. If any portion of this Will is held to be void or unenforceable, the balance shall nevertheless be carried into effect. ARTICLE 24. DOCUMENT PREPARATION. 24.1 . This Last Will and Testament was prepared by FARR LAW FIRM, 10640 Main Street, Suite 200, Fairfax, Virginia 22030, which finn can be contacted by telephone at 703-691-1888 or via the Web at www.FarrLawFirrn.com. The original of this document was provided to the Testator at or shortly after the time of signing. IN WITNESS WHEREOF, I, Thomas 1. Mehen, sign, seal, publish and declare this instrument (and I have signed each page of this document for purpose of identification) as my Last Will and Testament this day, February 17, 2017. The foregoing instrument was signed, sealed, published and declared by Thomas 1. Mehen, the above-named Testator, to be his last will and testament in our presence, all being present at the same time, and we, at his request and in his presence and in the presence of each other, have subscribed our names as witnesses on th bove written. N atasha Cranford Eve Rubinoff 10640 Main Street, Suite 200 10640 Main Street, Suite 2 Fairfax, VA 22030 Fairfax, VA 22030 laS! Will and Testament of Thomas J. Mehon ~ Si gn a tur~()~1 t I}age 17 COMMONWEA LTH OF VIRGINIA CITY OF FAIRFAX, to-wit: Before me, the undersigned authority, on this day personally appeared Thomas J. Mehen, Natasha Cranford and Eve Rubinoff, known to me to be the Testator and the witnesses, respectively, whose names are subscribed to the annexed or foregoing instrument in their respective capacities, and, all of said persons being by me duly sworn, the said Thomas J. Mehen, Testator, declared to me and to the said witnesses in my presence that said instrument is said Testator's Last Will and Testament, and that said Testator had willingly made and executed it as said Testator's free and voluntary act and deed for the purposes therein expressed; and the said witnesses, each under own oath, stated to me, in the presence and hearing of the said Testator and in the presence and hearing of each other, that the said Testator had declared to them that said instrument is said Testator's Last Will and Testament, and that said Testator executed same as such in their presence, and said Testator wanted each of them to sign it as a witness; and upon their oaths the witnesses stated further that they did sign the same as witnesses in the presence of the said Testator and in the presence of each other, at said Testator's request; and that the said Testator was at the time at least eighteen years of age, and was of sound mind and under no constraint, duress, fraud or undue influence; and that each of said witnesses was then at least eighteen years of age. Natasha Cranford, Witness EveNftL Rubinof(Witne~SC' SUBSCRIBED, SWORN TO AND ACKNOWLEDGED before me by the said Thomas J. Mehen, Testator, and subscribed and sworn to before me by the said Natasha Cranford and Eve Rubinoff, as witnesses, this day, February 17, 2017. Ju' . Cohee, Notary Public My mmission expires: June 30, 2019 v.3.2 'b •• JUSTIN A. COHEE ....1 NOTARY PUBLIC REGISTRATION it 73842?5 1 CO M M O NWEALTH OF vlRGINIA MY__ COtv__ ISS!ON30 .EXP1Rj:S 20-'-"- __ Last W;I~\ ofThomas J. Mehen Q ) J s ;gn a.!J~~'-7G 9~~ Page 18 COMMONWEALTH OF VIRGINIA CIRCUIT COURT OF FAIRFAX COUNTY OFFICE OF THE COMMISSIONER OF ACCOUNTS 4084 University Drive, Suite 102 Fairfax, Virginia 22030 703 - 667- 4900 John H. Rust. Jr. Joseph A. Barsanti Commissioner of Accounts Deputy Commissioner October 16, 2018 Thomas C. Mehen c/o Sara B. Entis 10640 Main Street Suite 200 Fairfax, VA 22030 Re: Trust under the Will of Thomas J. Mehen fuo: Elizabeth L. Mehen Fiduciary No. FI-2017-0002256A Dear Trustee: Our records indicate that the above-referenced trust was funded on August 17,2018. My office is responsible for reviewing, auditing and approving, if applicable, all inventories and accounts filed by fiduciaries who qualify before the Circuit Court of Fairfax County. This letter outlines certain of your fiduciary duties under the Virginia Code and sets forth important deadlines that you must meet. Please review it carefully. Your Inventory was received in our office October 9,2018. You also are required to file an account of the administration of the trust on May 1 of the year following the trust funding date. Your first account is due on or before May 1,2019. Unless your account is a final account which may end earlier, your first account should cover the period August 17,2018 to December 31,2018. Second and subsequent accounts covering the calendar year will be due by May 1 of the following year until all assets are distributed and a final account is filed. Each account must be accompanied by supporting documentation. In order to provide the necessary supporting documentation, you must keep a record of all assets you take in and all funds you disburse or distribute. You will need to open a trust bank account in your fiduciary capacity and pay as many things as possible by check so that you will have a receipt. You should use a financial institution in Virginia that provides either original cancelled checks or a bank copy ofthe front of your cancelled checks with your bank statements. Not all financial institutions provide the documentation required. For any items paid in a manner other than by check, you should secure a receipt from the payee. At the time you file your account, all of your bank statements, checks and receipts, together with the bills you paid, should be presented to support your account. All forms necessary for the proper administration of the trust, as well as additional information regarding trust administration, can be found on our website. I encourage you to spend some time www.fairfaxcommissionerofaccounts.org reading those sections of the website associated with trust administration. These sections will provide you with the basic information you need to understand your role as personal representative of the trust. The website also lists the dates and times of this office's monthly outreach meetings. These meetings are your opportunity to ask questions and gain a further understanding of your fiduciary responsibilities. During our review of your filings, we often need to communicate with you. We find that communication is quicker and more effective when we may use an email address in addition to your mailing address. If you are willing to accept email communications, please email us at [email protected] using your preferred email address, include the name of the estate and the fiduciary number as referenced above, and state your consent to email contact in this matter. This office will use email in addition to and not in lieu of any formal communications concerning the estate. As a final note, please be aware that there are many laws governing the proper administration of a trust. You should take care when paying debts of the trust or making distributions to the beneficiaries as you may be personally liable if payments are not made in the order and manner required by the law. If you have legal questions, you should direct them to a competent attorney of your own choosing whose professional assistance will generally be considered an expense of the trust. My staff and I look forward to working with you during your administration of this trust. Please feel free to contact this office if you have any questions. Very truly yours, John H. Rust, Jr. Commissioner of Accounts 19th Judicial Circuit By: dt 1. 2. 3. The Com.~s~~onEtr ofAcco~~ ho(q'F!;I.qti~!Y:.~.~ .~~!C)ri~.aVf}~.F~I!'f~CPH~ty Government 9~nt~rto ..,1st jflJ~~nng.f!!:Iu9i~"' q~~Dr1$; Y9.lJ, • .." "1')~!J~geq to iittend thes, ...ionstp.l.rn ml),~e,·a.~uty'ol,lr to,~ ~ 1! fj~~ary. The $che~l,Jle is ;:;ost_d on our WebsHe: \VWW.f.1tf.oommfjSigt;erqti~ms.pfg. . . '.' 4. As fiduciary it Is ~thln your dlscretioh to hire .a pr:ofess10nal to assi~t you in administering tile e.,~t~. If you h.v~ Jegalquestions~ ~ou.hpuld COQsu!l With an attom.,y. If you have quest/Qns relat~ to tax rnatktrs~ cOnSu~ with ao attor'ney~ a~u~nt~ or other competent ,uthoriiy. The prOfesslonal~~ fees are COnslde~.d an adnilnistratlve expe[lse and may be paid frPm the estate' ho~Ve.r. plea"'not~ ~at,in Circu~$~rices Wtle~ the prO~io~al Performs ciUtie~:that you ' should perfOiTTl, professlonel fees will be deducted from the fidUCIary fee you ate entitled to receive. 5. You should take ppssession of the assel$ of ~e ~eceased. ~inor or ineapacitated adult. Inquire about safe ~ppSH boxes and acc;:ou.nts that the dec:ecient or your ward may have maintained in- all financial institutions where YQu believe the ~derit or your ward did business. You should also make fin online s~i'Ch whether t~re t_ any unclaimed pro~rty In the name of the decedent or your ward at https;/Jwww.trI.vJrqlnl•. goV/p~ertyse8rchdotnet. 6. Sank accounts of the decedent or your warn shQt,lld be clos~d and funds should be deposHed In a sepa~te estElte BtXoUnt in your name in your fi~uciary C8P~city (Executor, Administrator, Trustee, GUflrDilln, or COns"Nator) for the elState. Keep all ~uch ~nds separate and apart from your personal fl,lnds. For tile fiduCiary a~unt, you must us~ a finanCial institution In Virginia that provides eith.,r priginal cancelled chE!lcks or a .,.nk cQpy of the frOnt of, )lour C8ncelleij cheCks with your bank statements. NQt all financial Institutlpns provide the documentation required. Consult with the finanCial institution conCemlng the type of accoLintsoffered before opening the aCcount. Funds in excess of the amo~nt you may need to pay current obligatlon~ and to avoid checking account charges should be Invested In an Interest.;bearing fiduciary account. . 7. You MUST keep a record of all receipts end disbursements of funds in the estate. You will be required to produce original supporting docume~ta.tlon www.fairlaxcommisslonerofaccounts.org 2018054110.001 BK25541 0184 09/20/2018 10:47:29 THIS DEED WAS DRAFTED By THE FARR LAW FIRM WITHOUT BENEFIT OF TITLE EXAM INA TION THE EXISTENCE OF TITLE INSURANCE IS UNKNOWN TO PREPARER. Return to: Farr Law Firm, A Professional Corporation; 10640 Main Street, Suite 200, Fairfax Virginia 22030 Tax Map No.: 0303 0<) 00<)<) Preparing Attorney: Evan H. Farr, VSB #27916 Grantee's Address: 1505 Dewherry Court, McLean, Virginia 22101 Consideration: $0.00 This Deed of Gift is exempt from recordation tax pursuant to Virginia Code § 58.1-811(D) because no consideration has passed between the parties. 1!\eeb of (!f)ift mbis 1!leel:l of @ift, made this day, September 19, 2018 ,by and between the following parties: GRANTORS: MICHAELMEHEN, as Executor of the estate ofTHOMASJ. MEHEN, THOMASMEHEN ,a married man, GEORGE MEHEN, an unmarried man, and MICHAEL MEHEN, a married man ("Grantor"), and FIRST THOMAS C. MEHEN, as Trustee of the testamentary trust established under the Last GRANTEE: Will and Testament of THOMAS J. MEHEN dated February 17, 2017, pursuant to the attached court order entered on August 17,2018 ("First Grantee"), and SECOND THOMAS MEHEN, a married man, GEORGE MEHEN, an unmarried man, and MICHAEL GRANTEE: MEHEN, a married man, as tenants in common ("Second Grantee"). Wbereas, the property was owned by THOMAS J. MEHEN by virtue of deed dated March 30, 2017, and recorded June 23, 2017 in Deed Book 25089, at Page 388; and Wbereas, THOMAS J. MEHEN departed this life on November 10,2017; and Wbereas, the Last Will and Testament of THOMAS J. MEHEN dated February 17, 2017 (recorded in Will Book 1112 at Page 2083 among the Fiduciary Records ofthe Clerk of the Circuit Court of Fairfax County, Virginia) distributed his estate to his children in equal shares; and Wbereas, ELIZABETH L. MEHEN, as the surviving spouse, filed a Claim for Elective Share of Augment Estate against said Last Will and Testament of Thomas J. Mehen (said Claim filed May 17,2018, and recorded in Will Book 1127 at Page 81 among the Fiduciary Records of the Clerk of the Circuit Court of Fairfax County, Virginia); and Wbereas, the value of the elective share was detemlined by Order of The Circuit Court of Fairfax County entered on August 17, 2018, which order is attached hereto and incorporated herein; and Wbereas pursuant to said Court Ordcr, a 65.21 % undividcd intcrcst in thc rcal cstatc described herein is to be transferred to the Grantee in satisfaction ofthe elective share of ELIZABETH L.MEHEN. BK25541 0185 ~01.tJ Witnessetb, that for estate administration purposes and for no consideration, the Grantors do hereby give, transfer, and convey an undivided sixty-five and twenty-one hundredths percent (65.21 %) interest unto the First Grantee and all successors in trust, and an undivided thirty four and seventy-nine hundredths percent (34.79%) interest unto the Second Grantee, as tenants in common, with general warranty of title, of that certain lot or parcel of land, with improvements thereon, situate, lying and being in FAIRFAX COUNTY, VIRGINIA, having an address of 1505 Dewberry Court, McLean, Virginia 22 tOt and more particularly described as follows: 1Legal :mescription: Lot 99, Section 2, Broyhill's McLean Estates and including a resubdivision of part of blocks 8 and 9, West McLean, as the same appears duly dedicated, platted and recorded in Deed Book 1651, page 435, among the land records of Fairfax County, Virginia. m:be jfirnt @rantee to ~abe anb to ~olb the 65.21 % undivided interest in the above described property as Trustee under the above-referenced trust, with all powers conferred on trustees under the general testamentary trust laws ofthe Commonwealth ofVirginia and pursuant to Virginia Code § 64.2-308.13.B and such other terms as the Court has detennined to be appropriate as stated in the attached Court Order. j,Flo llerson who deals with the First Grantee hereunder, or with any successor(s) in trust, shall be bound to inquire into the authority for, or propriety of, any action taken or not taken by such First Grantee. Every deed, deed of trust, lease, or other instrument executed by the First Grantee, or by any successor(s) in trust, on behalf of the trust identified herein and in relation to the property described herein, shall be conclusive evidence in favor of every person claiming any right, title, or interest thereunder that: (i) at the time of the delivery of such instrument the trust was in full force and effect; (ii) that such instrument was executed in accordance with the terms and conditions ofthe trust agreement or declaration of trust establishing such trust, and is binding upon all beneficiaries of said trust; and (iii) if such instrument is executed by successor(s) in trust to the First Grantee that such successor(s) in trust were properly appointed and were fully vested with all the title, estate, rights, powers, duties, and obligations of First Grantee, provided that said successor(s) in trust certify in said instrument that such successor( s) in trust were properly appointed. m:bis «onbepance is made subject to all provisions, covenants, encumbrances, restrictions, rights of way, easements, and/or agreements contained in the documents forming the chain oftitle to this property. m:be @rantorn «obenant that the Grantors have the right to convey said property to the Grantees; that the Grantees shall have quiet possession of the property; and that the Grantors will execute such further assurances of the property as may be requisite and necessary. -2- BK25541 0186 Witness the following signatures and seals- ~llJ /V~ (SEAL) MICHAEL MEHEN, individually and")!; Executor of the estate of THOMAS J. MEllEN S:rAT I t:'ETomRnCf'cOn1OMI1'I:M1I10"'1~".WmI=E"l'lATLTI t:lH7Q"IlF":-" tV.4.>.#/ /V tf i1) I~ :b e- .cal ~rTY OR ClTY"OF ______, TO-WIT: mbe unbcrsigncb .flotar" lBubht for the jurisdiction aforesaid does hereby certiry that MICBAEL MEHEN, individually and as Executor of the estate of THOMAS J. MEHEN, whose name is signed to the foregoing and hereunto annexed deed, bearing date on this day, has this day acknowledged the same before me in my jurisdiction aforesaid. l8iibtn muber ;£-ar j0anb anb scal this day, .4e;zqr If, :2AJl.g 1:>c#/V/C Y....{)VHC/!APy/f!- , N~ry PuJ>lic Commission expiration date: l'rrii:.- 3? ~ MK 1 DONNA KOYACHEVA HOTARV PUBLIC DlSlFIICT OF COWMBIA MyCornmilllan &phs ApI 30, 2021 -3- BK25~~~ ______~ STATE OR COMMONWEALTH OF ~~~~~--~------COUNTY OR CITY OF -=~~~~------ mOl' unbl'niignl'b ~otarp ~ubh.c for the jurisdiction aforesaid does hereby certify that THOMAS MEHEN, whose name is signed to the foregoing and hereunto annexed deed, bearing date on this day, has this day acknowledged the same before me in my jurisdiction aforesaid. @ibl'n Wnbl'r jNp j!i)anb anb $ll'al this day, --4'--'---'-----l--=-c:-'l.L-- I -4- BK25541 0188 .. ~ ,~. (SEAL) ~ 0. STATE OR COMM:ONWE~TH .OF ~":J ua,....~ COUNTY OR CITY OF rAA.~ , TO-WIT: it~e unberuigntb jiotarp ~ublic for the jurisdiction aforesaid docs hereby certify that GEORGE MEHEN, whose name is signed to the foregqing and hereu,nto annexed deed, bearing date on this day, has this ~ay acknowledged the same before me in my jurisdiction aforesaid. @iben Wnb£r :fit!' ~nnb nnb ~enl this day, ~1i1e"Jt"r, ItI"'.2P1K. , N~tJry J}.!blic ~"'rl':;';;:'~=:Pe"'-x'=:p~ir"-ia'""ti""o"-n-d::-a-te-: 0 Kpl RbitO -5- BK25541 0189 'Fe. c CIA F! - l"l- 2I-SIDA Arn IRGINIA: IN THE CIRCUIT COURT FOR THE COUNTY OF ft'AIRft'AX RE: ) ) CL- a.D\ ORDER t- 2 Cl)~ HIS MATTER having come before the Court on the 11 fI., J4'~ IJ f ~14( " upon the etition of Elizabeth L. Mehen, by counsel, for Establishment of the Elective Share and stablishment of Trust, pursuant to §64.2-308.1 et seq. of the Code of Virginia, as IT ApPEARING TO THE COURT, upon clear and convincing evidence, that: 1. Thomas J. Mehen ("Thomas") and Elizabeth L. Mehen ("Elizabeth") were married on May 31, 1968. Thomas died testate on November 10,2017. Michael Mehen, decedent's son, qualified as Executor on December 5,2017. Thomas C. Mehen, as Agent for Elizabeth under the Durable General Power of Attorney dated January 3,2014 attached hereto as Exhibit 1, filed a Claim for Election of Share of Augmented Estate on May 17,2018, which is attached hereto as Exhibit 2. Pursuant to Virginia Code § 64.2-308.13.B., Elizabeth is presumed to be an incapacitated person because her Claim for Election of Share of Augmented Estate was made by her agent under a durable power of attorney. Elizabeth is incapacitated and resides in Fairfax Nursing Home. The marital-property portion of Thomas's augmented estate is 50% pursuant to Virginia Code § 64.2-308.3. The length of the marriage was 49 years making the value of Elizabeth's marital-property portion of Thomas's augmented estate 100% under Virginia Code§ 64.2-308.4. Thomas's probate estate consisted of the following: FIduciary #: FI·2017.(l002256 #of Pages: 5 Date: 0811712018 Will 8K 01134 PC 2215 Estate: MEHEN, THOMAS J Recorded In FAIRFAX COUNTY CIRCUIT COURT TESTE: JOHN T. FREY BK25541 0190 a) the real property located at 1505 Dewberry Court, McLean, VA 2210] ("Real Property") which Real Property was owned solely by Thomas. The tax assessed value of the Real Property for 2017 is $779,590. b) 411.48255 shares Dupont (DWDP) @70.12/share totaling $37.487.01 c) 84.8788708 shares Chcmours (CC) @ $50.73/share totaling $4,305.90 d) Promissory Note dated February 17, 2017 from Thomas C. Mehen in the original principal amount of$36,900.00 with a current balance due of $31,500.00. e) Promissory Note dated February 17, 2017 from Michael A. Mehen in the original principal amount of $14, 166.00 with a current balance due of $11,899.44. f) BB&T checking account #7533 with a date of death balance of$90,129.84. g) 2004 Honda Accord 4D LX with NADA retail value of $4,950. Administration costs for the Estate are as follows: a) Funeral Expenses of $5,3 86.1 0 b) Legal Fees of $47,890.00 c) Probate tax of$957.81 8. Thomas made no non-probate transfers to Elizabeth. Thomas made non-probate transfers through beneficiary designation of life insurance to his sons Thomas C. Mehen, George Mehen and Michael Mehen. Each son received $37,698.05 for a total of $113,094.15 of non-probate transfers to others. 10. Elizabeth's property consists of the following: a) BB&T #7657 with balance of$1,516.38 b) 2009 Honda Accord 4D LX with NADA retail value of$7,625. 11. The value of Thomas's augmented estate is $1,025,813.81 (see Exhibit 3 for calculation) and the marital property portion thereof is $1,025,813.81. 12. Elizabeth's 50% elective share of the marital property portion of the augmented estate is $512,906.91. $508,336.22 remains unsatisfied. -2- BK 25541 0191 OW, THEREFORE, IT Is ADJUDGED, ORDERED, AND DECREED THAT: Elizabeth L. Mehen's elective share is $512,906.91. The unsatisfied portion of Elizabeth L. Mehen's elective share shall be satisfied by transfer of a 65.21 % share of the Real Property to a testamentary (meaning created by a last will and testament') discretionary trust established automatically pursuant to Virginia Code § 64.2-308. 13.B. with Thomas C. Mehen as trustee, and the property (and any income generated by said property) in said testamentary discretionary trust established pursuant to Virginia Code § 64.2-308.13.B shall be considered exempt and not a resource in connection with Medicaid, pursuant to the clear intent of Virginia Code § 64.2-308.13.B., and pursuant to Federal Medicaid laW and Virginia Medicaid policy, specifically: a. Virginia Medicaid Policy Manual, Section S 1 ] 10.1 OO.B.l, which states that Resources are cash and any other personal or rcal property that an individual (or spouse, if any): • owns; has the right, authority, or power to convert to cash (ifnot already cash); and • is not legally restricted from using for hislher support and maintenance. and b. Virginia Medicaid Policy Manual MlI40AOO.A, which states that "[i]fa Medicaid applicant or recipient is the named beneficiary in a trust established by a will, detennine from the terms of the trusts, what income or principal is L Testamentary means "A trust that is created by a will and takes effect when the settlor (testator) dies." See, for example, Black's Law Dictionary, 7th Ed. 242 U.S.c. § 1396p(d)(2): "For purposes of this subsection, an individual shan be considered to have established a trust if assets of the individual were used to form all or part of the corpus of the trust and if any of the following individuals established sueh trust other than by will: ... (ii) The individual's spouse." (emphasis added) and 20 eFR § 416.1201. Resources; general. (a) Resources; defined. For purposes of this subpart L, resources means cash or other liquid assets or any real or personal property that an individual (or spouse, if any) owns and could convert to cash to be used for his or her support and maintenance. BK25541 0192 available to the applicant or recipient. Jfthe trust is 'discretionary' determine what part of the corpus or income the trustee is making availahle to the applicant or recipient. Any corpus or income which the trustee does not make available cannot be counted in detennining Medicaid eligibility." The trustcc of the testamentary discretionary trust established pursuant to Virginia Code § 64.2-308.13.B must administer the trust in accordance with the requirements of Virginia Code § 64.2-308.13.B and such other terms below as this court has determined to be appropriate: a. Expenditures of income and principal of this testamentary trust shall be totally discretionary by the trustee, and may be made only in the manner, when, and to the extent that, the trustee determines suitable and proper for the surviving spouse's benefit, without further court order but with regard to other support, income, and property ofthe surviving spouse and with regard to benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need, specifically including Medicaid; h. During the surviving spouse's incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; c. Upon the surviving spouse's death, the trustee shal1 transfer the unexpended tmst property under the residuary clause of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; d. As already stated, the trust established hereunder shall be treated as a testamentary trust created by the last will and testament of Thomas J. Mehen, the Petitioner's spouse, subject to the provisions governing testamentary trustees under Title 64.2 of the Code of Virginia. 1k" T""...,,+ .. ~ ... ",..,t .f:lt .. fa .... .A "., A~ :",J.. kit '(\.IJ D.."" .. +~ o#:<-ci ",-" " ...... '" 1 +- NTERED this -, 7 day of A-.t) (,t; 7 r , 2018. {'-ie .:t'"\ ~,",OM."'.I'7 """, ,u!""'""~ 'i. t::Jo Nc na & -I'"f- 201& ~ ?JUDGE ~ -4- BK25541 0193 E ASK FOR THIS: ARR LA?fffiM. A PROFESSIONAL CORPORAnON y: \.b-~5 ~ Evan H. Farr, VSB No. 27916 Kathleen G. Limjoco VSB No. 37689 Sara B. Entis, VSB No. 42259 Counsel for Petitioners 10640 Main Street, Suite 200 Fairfax, Virginia 22030 Tel: 703-69] -1888 Fax: 877-499-3977 SEEN AND AGREED: T1:::STE. T. FR.EY, CLERI-, -5- 09/20/2018 T~;~ZED ~RF7~::: /' JV'- CLERK () Tills DEED WAS DRAFfED By THE LAW FIRM or EVAN H. FARR, P.C., WITHOUT BENEFIT or TITLE EXAMINATION THE EXISTENCE OF TITLE INSURANCE IS UNKNOWN TO PREPARER. Return to: The Law Firm of Evan H. Farr. P.C.: 10640 Main Street. Suite 200, Fairfax Virginia 22030 Tax Map No.: 030309 0099 Grantee's Address: 1505 Dewbeny Court, Mclean, Virginia 22 10 I Consideration: $0.00 This Deed or Gift is exempt from recordation tax pursuant to Virginia Code § 58 .1-811(0) because no consideration has passed between the parties. 1lBeeb of ~ift I!J;bis filcell, malic this day, t'\a..<" §.f;,raIQ;;;"'YK'iM" Lot 99, Section 2, Broyhill's McLean Estates and including a resubdivision of part of blocks 8 and 9, West McLean, as the same appears duly dedicated, platted and recorded in Deed Book 1651, page 435, among the land records of Fairfax County, Virginia. ~nll JLicin!I the same property conveyed to the Grantor by Deed recorded in Deed Book 3901 at Page 301 among the land records of Fairfax County, Virginia. This conveyance is made subject to encumbrances, restrictions, rights of way, easements, if any, andlor agreements contained in the deeds forming the chain of title to this property. The Grantor covenants that Grantor has the right to convey the said land to the Grantee; that the Grantee shall have quiet possession of the said land; and that the Grantor will execute such further assurances of said land as may be requisite and necessary. WITNESS the following signatures and seals.. ~'_/ (SEAL) ~J.Mehe~ ! ------~'- COMMONWEALTH OF VIRGINIA CITY OF FAIRFAX, TO-WIT: 1Ebr IInbrrgignrb ~otar" ~ublir for the jurisdiction aforesaid does hereby certify that Thomas J. Mehen, whose name is signed to the foregoing and hereunto annexed Deed, bearing date on this day, has this day acknowledged the same before me in my jurisdiction aforesaid. ~ibrn Wnbrr Jill!' ;l.!)anb aub ~ral this day, /,\{!,,-ctJA:)0 2..t>\'J Justi')::j . Cohee, Notary Public My eommission expires: June 30, 2019 i.:irantor: MEHEN, i"HUMA:S oJ i.:irantet!: hlEHEN , THUMA::> oJ OateTime: 612312017 2:05:04 PM Instrument: 2017038991 .001 BookJPage: 250SS/0388 #of Pages: 3 Recorded In FAIRFAX CIRCUIT COURT TESTE: JOHN T. FREY .a7' )' a... / AH"''''1'''r ..... rc...t:J- ~ L., "Un.. (SEAL) Elizabeth L. Mehen, by Thom~s C. Mehen Attorney-in-Fact STATE OF NORTH CAROLINA CITY OF Dli W h(i\ YY1 , TO-WIT: mbr ul1bcr~igurb J)iotarp ~ubli( for the jurisdiction aforesaid does hereby certify that Elizabeth L. Mehen, by her Agent under Power of Attorney Thomas C. Mehen, whose name is signed to the foregoing and hereunto annexed Deed, bearing date on this day, has this day acknowledged the same before me in my jurisdiction aforesaid. @iUru l!liuber ~p J!)anb nub S'S>rnl this day, fV'\GlY(ih 2f) 120 Il c n s l1nPCi IilI/~ Notary Public My commission expires: N0 V~ IQW III Zv I g Ms. Elizabeth Mehen - FNC Payment BB&T #7657 Bank Amount to Date Description Debit Credit Balance pay to FNC $1,232.98 02.02.18 SSA Payment $595.00 $1,827.98 $10,848.14 Credits 02.06.18 OPM Payment $10,253.14 $12,081.12 $10,305.14 Less FNC Payment 02.16.18 NH Payment $543.00 $11,538.12 $10,265.14 Less $40 Personal Allowance $10,608.35 Plus $343.21 Taxes Withheld from OPM Income $10,608.35 February 2018 total to Pay to FNC 03.01.18 SSA Payment $3,217.00 $14,755.12 03.01.18 OPM Payment $4,536.61 $19,291.73 03.02.18 SSA Payment $595.00 $19,886.73 $10,019.61 Credits 03.16.18 FNC Payment $555.00 $19,331.73 $9,464.61 Less FNC Payment 03.22.18 SSA Payment $1,671.00 $21,002.73 $9,424.61 Less $40 Personal Allowance $9,767.82 Plus $343.21 Taxes Withheld from OPM Income $9,767.82 March 2018 total to Pay to FNC 04.02.18 OPM Payment $4,536.61 $25,539.34 $6,893.61 Credits 04.05.18 SSA Payment $2,357.00 $27,896.34 $6,338.61 Less FNC Payment 04.17.18 FNC Payment $555.00 $27,341.34 $6,298.61 Less $40 Personal Allowance $6,641.82 Plus $343.21 Taxes Withheld from OPM Income $6,641.82 April 1-17 total to Pay to FNC $27,017.99 Grand total to pay to FNC $27,341.34 Bank Balance $323.35 Remainder after FNC Payment U.S. Office of Personnel M anagement Retirem ent Services Program Notice o f Annuity Adjustment Claim Number : CSF 3 798069 W Dear ELIZABETH L MEHEN, The amount we are paying you has changed . This letter provides your new monthly annuity rate and information about any adjustment reflected in your Karch 1 , 2018 payment, which pays your annuity for the month of February. Please keep this notice for your records . We will mail you another notice the next time your payment amount changes. $ 5 , 125. 00 Gross Monthly Annuity $ - 245 . 18 We are collect!"l!] fN' health benefits premiums. $ - 343.21 We are withholding federal income tax from your annuity. $ 4 , 536 . 61 Net Monthly Annuity If you have questions about this notice, you may call the Retirement Information Office at 1-888-767-6738 between 7:30 a.m. and 5:00 p.m. Eastern time , Monday through Friday and speak to a Customer Service Specialist. Please call us at 202-606-0500 if you live within local calling distance of washington, DC . You may also contact us using email at [email protected] . Go to www.servicesonline. opm.gov to find out how to receive your IRS l099R , annual mailer and other informational alerts electronically. A great deal of retirement information is available online at www . opm.gov/retire. Retirement Services Social Security Administration Retirement, Survivors and Disability Insurance - Notice of Change in Benefits Southeastern Program Service Center 1200 Rev . Abraham Woods, Jr. Blvd. Birmingham, AL 35285-0001 Date: March I, 2018 Claim Number: 22408-8781A ,11111 lui" ,1 1,11 1,11 111" II. hIfI'n II 1"lIIlIIh' '1 111 , I' 111,1 105 I MlJ 0.424 T2 MAAD296 PI. ) 5296 M I Pcl 180223 '" f; UZABlml L MEllEN 1505 DEWBERRY COURT MCLEAN VA 22101 We are writing to give you new information about the retirement benefits I which you receive on this Social Security record. Your Benefits , We will send you both benefits in one check each month under your own claim number. I What We Will Pay "i We pay Social Security benefits for a given month in the next month. For example, Social Security benefits for March are paid in April. Your benefit is $146.00 as a wife. This is in addition to the benefit of $1,257.00 on your own earnings record. • The next check you receive will be for $3,217.00, which is the money you are due through February 2018. • Your next scheduled payment of $1,403.00, which is for March 2018, will be received on or about the third of April 2018. • After that, you will receive $1,403.00 on or about the third of each month. c Randy Dossey From: Natasha Cranford Sent: Wednesday, December 05, 2018 9:14 AM To: Randy Dossey Subject: FW: Elizabeth Mehen – Case #116416604—Change in Marital Status Categories: Yellow category From: Evan H. Farr Sent: Wednesday, November 22, 2017 11:18 AM To: [email protected] Cc: Natasha Cranford; Sara Entis; Seresa Maria El-Gafy; Connie Vint; Arlene Figueroa; [email protected]; [email protected]; George: Subject: Elizabeth Mehen – Case #116416604—Change in Marital Status Dear Ms. Kim, In the above‐reference case, please note that the Community Spouse, Thomas J. Mehen, was found deceased on November 10, 2017. The Last Will and Testament of Thomas J. Mehen (copy here) leaves his entire estate to his children, with nothing being left to his spouse, Elizabeth Mehen. Please also note that there were no jointly‐owned assets; the real estate formerly owned by the couple was transferred solely to Thomas J. Mehen by Deed dated March 30, 2017 (copy here). This was of course an exempt transfer pursuant to M1450.400.D, which states that any property may be transferred to a spouse without effecting Medicaid eligibility. Accordingly, there are no assets that have passed to Elizabeth Mehen as a result of her husband’s death, so she remains resource‐eligible for Medicaid. There is also no asset transfer that has occurred, and there will be no asset transfer, as explained in more detail below. We are of course aware that Elizabeth Mehen, by and through her Agent under Power of Attorney, is required to claim her inheritance rights (i.e., her elective share amount) calculated pursuant to Virginia Code § 64.2‐308.3, part of Virginia’s new Augmented Estate Statute affective January 1, 2017, as failure to claim her inheritance rights / elective share in court within the required statutory time period would be considered an uncompensated asset transfer. For the purposes of asset transfer policy, an "asset transfer" includes “disclaiming an inheritance or not asserting inheritance rights in court.” M1450.003.C, second bullet (emphasis added). Accordingly, failure of Elizabeth Mehen to assert her inheritance rights in court would constitute an uncompensated asset transfer. Please note that there is no provision under the law or in the Medicaid Manual for DMAS or for the local Medicaid agency to determine the amount of Mrs. Mehen’s “inheritance rights” mentioned above. Only the court can determine the amount her inheritance rights (technically called the “elective share”), which is why M1450.003.C cited above specifically references not asserting inheritance rights in court. Please note that § 64.2‐308.12.B sets out the time limits for instituting a court proceeding for claiming the elective share, which can only be claimed in court. It says that “A. The election by the surviving spouse of a decedent who dies domiciled in the Commonwealth must be made no later than six months after the later of (i) the time of the admission of the decedent's will to probate or (ii) the qualification of an administrator on the decedent's intestate estate, by a writing recorded in the court or the clerk's office thereof . . . . ” It is anticipated that the decedent's Last Will and Testament will be admitted to probate on or about December 5, 2017. Therefore, Elizabeth Mehen will be required to claim the elective share amount in court within six months after December 5, 2017; however, we intend to have Elizabeth Mehen claim her elective share in court as soon as possible after her husband’s Last Will and Testament is admitted to probate, thus complying with her duty to assert her 1 inheritance rights in court. She must first file a claim in court within six months after decedent's Last Will and Testament is admitted to probate, and then there must be a court hearing pursuant to 64.2‐308.12.D., at which time the court “shall determine the elective share amount, and shall order its payment from the assets of the augmented estate or by contribution as appears appropriate under §§ 64.2‐308.10 and 64.2‐308.11.” Please remember that there is no provision under the law or in the Medicaid Manual for DMAS or for the local Medicaid agency to determine the amount of Mrs. Mehen’s elective share; only the court can determine the amount of her elective share (her inheritance rights), which again is why M1450.003.C cited above specifically references not asserting inheritance rights in court. Once the elective share amount has been determined by the court, and the court has ordered it’s payment from the assets of the augmented estate, then Virginia Code § 64.2‐308.13.B will kick in, which creates a mandatory special needs trust for the benefit of the Medicaid recipient, the assets of which trust will not be countable resources in connection with Medicaid. Section 64.2‐308.13.B states in relevant part as follows (emphasis added where appropriate): “If the election is made on behalf of a surviving spouse who is an incapacitated person, and the court enters an order determining the amounts due to the surviving spouse, the court must set aside that portion of the elective share amount due . . . and must appoint a trustee to administer that property for the support of the surviving spouse. For the purposes of this subsection, an election on behalf of a surviving spouse by a conservator or agent under a durable power of attorney is presumed to be on behalf of a surviving spouse who is an incapacitated person. The trustee must administer the trust in accordance with the following terms or such other terms as the court determines appropriate: 1. Expenditures of income and principal may be made in the manner, when, and to the extent that the trustee determines suitable and proper for the surviving spouse's support, without court order but with regard to other support, income, and property of the surviving spouse and benefits of medical or other forms of assistance from any state or federal government or governmental agency for which the surviving spouse must qualify on the basis of need. 2. During the surviving spouse's incapacity, neither the surviving spouse nor anyone acting on behalf of the surviving spouse has a power to terminate the trust; but if the surviving spouse regains capacity, the surviving spouse then acquires the power to terminate the trust and acquire full ownership of the trust property free of trust, by delivering to the trustee a writing signed by the surviving spouse declaring the termination. 3. Upon the surviving spouse's death, the trustee shall transfer the unexpended trust property in the following order: (i) under the residuary clause, if any, of the will of the predeceased spouse against whom the elective share was taken, as if that predeceased spouse died immediately after the surviving spouse; or (ii) to the predeceased spouse's heirs under Chapter 2 (§ 64.2‐200 et seq.). 4. The trust shall be treated as a testamentary trust subject to the provisions governing testamentary trustees under Title 64.2.” The language of subsection 1 above makes it clear that the trust to be created is the equivalent of a special needs trust, and subsection 4 makes it clear that this trust is treated as a testamentary trust. Therefore, the assets in this testamentary special needs trust will not be resources for the purpose of Medicaid because assets in a testamentary trust created for the benefit of a Medicaid recipient by another person are never considered resources. The person who will be deemed to have created the testamentary special needs trust in this case is the decedent, Mr. Mehen, because the trust is considered a testamentary trust (meaning a trust established under a Last Will and Testament). In this regard it is important to note that M1140.404 does not apply to this matter because M1140.404.B.1.a makes it clear that this section of the manual pertains only to trusts established "other than by will," which is not going to be the case here, as the trust in question will be considered a testamentary trust established pursuant to the will of Mr. Mehen. -- Evan H. Farr, CELA, CAP Certified Elder Law Attorney (National Elder Law Foundation) Council of Advanced Practitioners (National Academy of Elder Law Attorneys) Four-time #1 Best-Selling Author | https://www.amazon.com/author/evanhfarr 2 Farr Law Firm, A Professional Corporation Creator of the Living Trust Plus™ Asset Protection Trust for Medicaid and Veterans Benefits Main Phone: 703-691-1888 | Website: www.FarrLawFirm.com Fairfax Office Mailing Address: 10640 Main Street, Suite 200, Fairfax, VA 22030 Fairfax Office Driving Address: 10640 Railroad Square, Suite 200, Fairfax, VA 22030 Fredericksburg Office: 511 Westwood Office Park, Fredericksburg, VA 22401 | 540-479-1435 DC Office: 1775 I Street NW, Suite 1150, Washington, DC 20006 | 202-587-2797 MD Office: 1 Research Court, Suite 450, Rockville, MD 20850 | 301-519-8041 Toll-Free Tel: 800-399-FARR (3277) Fax: 703-345-9999 ------Please Note: If you are in urgent need of a response, please follow up with a phone call. Do not assume that we have received your e-mail message, as emails sometimes get lost in cyberspace! Thank you. ------"Be kind whenever possible. It is always possible.” -The Dalai Lama ------NOTICE - Unless expressly stated otherwise, this communication: (1) is not legal advice absent an existing attorney-client relationship between us; (2) does not create an attorney-client relationship; (3) does not constitute an offer, acceptance, or contract amendment; (4) may contain confidential or legally privileged information protected by the attorney-client relationship and/or work product privilege; (5) is only for the use of the individual to whom it is intended by the sender to be sent, and if you are not such recipient, disclosure, copying, distribution or reliance upon this communication is prohibited; and (6) is not intended, and cannot be used, to avoid tax-related penalties pursuant to treasury department circular 230. 3 Randy Dossey From: Natasha Cranford Sent: Wednesday, December 05, 2018 11:18 AM To: Randy Dossey Subject: FW: Fairfax County Secure Mail Attachments: Mehen Deed for Signature_Order Attached.pdf; 2018 Updated OPM Income Verification.pdf; BB&T #7657 07.19.18-08.20.18.pdf Categories: Yellow category -----Original Message----- From: Natasha Cranford Sent: Friday, September 07, 2018 11:28 AM To: 'Van Rijn, Carolyn' Cc: 'McDonald, Erin M'; Jeannie Farr; Connie Vint; Seresa Maria El-Gafy; Arlene Figueroa ([email protected]) Subject: RE: Fairfax County Secure Mail Good morning, Ms. van Rijn In satisfaction of the elective share of Elizabeth Mehen, a deed has been prepared conveying 65.21% percentage interest in the property to the trustee of the statutory special needs trust. A copy of the unsigned Deed is attached. We will send you a final copy once it has been signed and recorded. Per your request, I have also attached Ms. Mehen's 2018 OPM income verification and her most recent BB&T #7657 statement. Please let us know if you have any questions or need any additional documentation. If you could kindly confirm your receipt of this email, we would greatly appreciate it. Warmest regards, Natasha Cranford Medicaid Paralegal Farr Law Firm, A Professional Corporation www.FarrLawFirm.com Fairfax Office Phone Number: 703-691- 1888 Fairfax Office Mailing Address: 10640 Main Street, Suite 200, Fairfax, VA 22030 Fairfax Office Driving Address: 10640 Railroad Square, Suite 200, Fairfax, VA 22030 Fredericksburg Office: 511 Westwood Office Park, Fredericksburg, VA 22401 | 540-479-1435 DC Meeting Location: 1775 I Street, NW, Suite 1150, Washington, DC 20006 | 202-587-2797 MD Meeting Location: 1 Research Court, Suite 450, Rockville, MD 20850 | 301-519-8041 Toll-Free Telephone: 1-800-399-FARR Firm Fax: 703-345-9999 Elder Law Team Fax: 703-563-3830 This communication may contain privileged information intended solely for the recipient. It may not be used or disclosed except for the purpose for which it has been sent. If you are not the intended recipient, you must not copy, distribute or take any action in reliance on it. Unless expressly stated, opinions in this message are those 1 of the individual sender. If you have received this communication in error, please notify the sender and delete the message and any attached documents. I also did not see the OPM statement verifying gross income. I admit it may be here and I missed it. If you have sent it please give me the date and I will research further or if possible resend it. Since it is now September if you would send current bank statements that would be helpful. From: "Van Rijn, Carolyn" I am preparing to send the trust documents submitted to the DSS Regional Office for review. I checked Fairfax County tax records and there records show the home as owned by ”Heirs of Thomas J Mehen”. Will this be changed to show the trust as owner or part owner of the property? I also did not see the OPM statement verifying gross income. I admit it may be here and I missed it. If you have sent it please give me the date and I will research further or if possible resend it. Since it is now September if you would send current bank statements that would be helpful. I usually work Tuesday, Wednesday and Thursday but next week I will be in Thursday, September 13 and Friday, September 14. Thank you for your assistance. Susie van Rijn (Carolyn), Human Service Worker Fairfax County Department of Family Services Hours: Tuesday, Wednesday, and Thursday 9-5 Office: 703-324-8139 Customer Service: 703-324-7500 LTC Info Line: 703.324.7622 Submit Documents: • At your local office or by mail to: Fairfax County Department of Family Services 12011 Government Center Parkway, Suite 232 (LTC) Fairfax, VA 22035 • Via Email to [email protected] • Via CommonHelp at https://commonhelp.virginia.gov/access/ • Via Fax to 703-653-1350 2 -----Original Message----- From: Van Rijn, Carolyn [mailto:[email protected]] Sent: Wednesday, September 05, 2018 4:36 PM To: Natasha Cranford Subject: Fairfax County Secure Mail You have received a Fairfax County Secured Message from: Van Rijn, Carolyn To read this message securely, please click this link: https://fcsm.fairfaxcounty.gov/b/b.e?r=natasha%40farrlawfirm.com&n=M1WlyyhgGLkOCM0WVnycFA%3D %3D 3 Randy Dossey From: Natasha Cranford Sent: Wednesday, December 05, 2018 11:01 AM To: Randy Dossey Subject: FW: Ms. Elizabeth Mehen Categories: Yellow category From: Tran, Thuy [mailto:[email protected]] Sent: Tuesday, July 17, 2018 1:27 PM To: Natasha Cranford Cc: Kim, Susan J.; McDonald, Erin M Subject: RE: Ms. Elizabeth Mehen In reviewing the case record, we have determine that this case will be processed as a reported change. There is no need for a new application. The case was closed by Ms. Kim effective 6/1/18 due to excess resources. You are now providing an update on the resources. Ms. Kim will review the documents that you have sent on 6/27/18 and will be in contact with you. Thank you. From: Natasha Cranford [mailto:[email protected]] Sent: Tuesday, July 17, 2018 9:10 AM To: Tran, Thuy Case Name: Mehen, Elizabeth Case Number: 116416604/T17583183 Good morning, Ms. Tran, We received a letter acknowledging your receipt of Ms. Mehen’s Medicaid Application, but we have not yet received a checklist of additional verifications needed to process her application. We kindly ask that you expedite the processing of this application and send the checklist as soon as possible. We emailed an additional verification to you and to [email protected] on 07.02.18. Could you kindly acknowledge your receipt of this document? Warmest regards, Natasha Cranford Medicaid Paralegal Farr Law Firm, A Professional Corporation www.FarrLawFirm.com Fairfax Office Phone Number: 703-691-1888 Fairfax Office Mailing Address: 10640 Main Street, Suite 200, Fairfax, VA 22030 Fairfax Office Driving Address: 10640 Railroad Square, Suite 200, Fairfax, VA 22030 1