Creating a last will and testament is a key part of estate planning in Virginia. With a will, you control who inherits your assets, who manages your estate, and who cares for your minor children. These FAQs answer the most common questions about wills in the Commonwealth of Virginia.
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Frequently Asked Questions
- What If I Die Without a Will in Virginia?
- Who Can Make a Will in Virginia?
- Does Virginia Have a Statutory Will?
- What Types of Wills Does Virginia Accept?
- Can I Make My Own Will in Virginia?
- How Do I Make My Will Valid in Virginia?
- Can I Disinherit My Spouse in Virginia?
- Can I Disinherit My Children in Virginia?
- What Estate Planning Documents Should I Have in Virginia?
What If I Die Without a Will in Virginia?
When a decedent dies with a will, the terms of the will dictate how their loved ones and family members inherit their property. When someone dies without a will, this is called dying intestate. When this happens, Virginia law determines who inherits.
In most situations, the spouse and children inherit the assets and personal property of the decedent. If there is no spouse or children, then parents, siblings, grandparents, or other next of kin inherit the estate.
What Does a Will Do?
A will allows you to:
- Identify your personal property and real estate
- Name beneficiaries who inherit your assets according to your wishes
- Choose a personal representative (sometimes called an executor), a fiduciary who identifies your assets, presents your will to the probate court, and follows your wishes outlined in your will
- Select guardians for minor children
- Set aside funds to care for your pets and name a caregiver for them
You can also disinherit someone or donate money to charity.
What Doesn’t a Will Do?
While a will is a comprehensive and far-reaching legal document, it does not control all of your assets. Some assets, called non-probate assets, transfer according to the terms of their own documents. These include:
- Life insurance payments (to beneficiaries other than to the estate itself)
- Annuities
- Pensions
- 401(k)s
- IRAs
- Keoghs
- Property owned as joint tenants with right of survivorship
- Trusts, including living trusts and assets owned by trusts
- Funds in payable on death or transfer on death bank accounts
It is important that these accounts and policies have the correct beneficiary and a backup beneficiary in case your primary beneficiary dies before you. Make a list of all your accounts and policies, and check that you have beneficiaries for all. If you don’t, those proceeds without a beneficiary will become part of your probate estate.
Who Can Make a Will in Virginia?
To make a will in Virginia, the person making the will, called a testator, must meet the following standards:
- Age: You must be age 18 or older or an emancipated minor to make a will in Virginia.
- Sound Mind: You must have a sound mind. Being of sound mind means the testator understands what they own, who their natural heirs are, how they want to distribute their property, and that they are signing their will.
Virginia residents with concerns on whether or not they can make a will may want to consult estate planning attorney for legal advice and assistance.
Does Virginia Have a Statutory Will?
No. Virginia does not have a statutory will or a prescribed form. You can create your own will customized to your needs or hire an estate planning attorney. Many choose to make their will with online resources such that help you draft a will conforming to Virginia law.
What Types of Wills Does Virginia Accept?
Most wills are typed or printed documents signed by the testator with witnesses. Even though Virginia accepts other types of wills, this is generally best to avoid disputes over authenticity.
Other types of wills to understand include:
- Handwritten will: Virginia permits a “holographic will,” one that is handwritten in the testator’s handwriting. This type of will is valid according to the Code of Virginia if the testator signs it and two disinterested (non-beneficiary) witnesses witness it. A will that is partially typed and partially in the testator’s handwriting is valid if the testator signs the will or acknowledges the will and two competent witnesses are present who sign the will in the testator’s presence.
- Oral wills: An oral will is one that is spoken. Virginia does not permit oral or spoken wills.
- Electronic wills: An electronic will is a will signed and witnessed by electronic methods. At this time, Virginia does not allow electronic wills.
The most reliable type of will is a traditionally printed, signed, and witnessed will. Other types may be easier to contest on the grounds of fraud or coercion.
Can I Make My Own Will in Virginia?
Yes. You may create your own will in Virginia. You do not have to use an attorney to draft your will. Many Virginians use self-help solutions to draft their will according to Virginia law. The benefit is that you can easily make a new will when your life circumstances change, for example, when a child is born, or there is a death in the family.
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How Do I Make My Will Valid in Virginia?
Because a will is a legal document, you want it to be enforceable in Virginia. To ensure your will is valid in Virginia, you must adhere to the following rules:
- Signature: You must sign the will yourself or direct someone to sign for you.
- Witnesses: Two witnesses must see you sign the will. They can be interested witnesses if the will is not a holographic will. Interested witnesses are people named as beneficiaries of the will. They may be competent witnesses even though they have an interest in the will, unless it is a holographic will.
- Notary: There is no requirement that a notary must notarize your signature unless you are using a self-proving affidavit.
- Self-proving affidavit: In Virginia, you can attach a self-proving affidavit to the will. This attachment has specific language set out in the statute. The testator and witnesses sign the affidavit before a notary public who confirms their identity and signatures. When a will goes to probate court with this affidavit, the witnesses do not have to testify. They may have to attest in court to the will’s authenticity if there is no affidavit.
Can I Disinherit My Spouse in Virginia?
You do not need to include your spouse in your will for it to be valid in Virginia. However, if you attempt to disinherit your spouse, they have the right of election under the Code of Virginia, called the elective share. The elective share gives them the right to half of the marital property in the decedent’s estate if there are no surviving children or grandchildren. If there are children or grandchildren, the spouse is entitled to one-third of the estate. A surviving spouse and minor children may receive a family allowance and homestead allowance. However, a spouse may waive their right to the elective share in a pre-nuptial or post-nuptial agreement.
Can I Disinherit My Children in Virginia?
You can disinherit your children in Virginia if you wish. To do so, you should specifically state in your will who you are disinheriting and why. If you do not, the court may consider the child “omitted,” one left out by mistake. In that case, they may receive what they would get under the state intestacy statute or an equivalent amount as other children included in the will.
What Estate Planning Documents Should I Have in Virginia?
Several other documents should be part of your complete estate plan in Virginia. These include:
- Power of Attorney. If you are unable to handle your financial affairs, you may name an agent to make financial decisions on your behalf. Some do this in case of incapacity or sometimes for convenience.
- Health Care Directive. Virginia’s health care directive or living will allows you to decide about end-of-life care or life-supporting treatment. You can also name an agent who can make medical decisions for you if you cannot do so for yourself.
Fortunately, making a valid will and creating other Virginia estate planning documents is easy with online estate planning templates.
