Creating a will is an important step in planning the distribution of your estate (assets including real and personal property) following your death. Virginia wills allow for any children, your spouse, other family members, and pets to be provided for after your death. LegalZoom works with you, the testator (the person making the will), to create valid Virginia wills and to assign a person (called the executor in most states) to administer a Virginia last will and testament after the death of the testator.
Basic Requirements for a Virginia Last Will and Testament:
Age: The testator must be at least 18 years old.
Capacity: The testator must be of sound mind (capable of reasoning and making decisions).
Signature: A Virginia last will and testament must be signed by the testator or by some other person under the testator's direction in the testator's presence.
Witnesses: At least 2 witnesses (who are not beneficiaries) are required for a valid Virginia last will and testament by subscribing their names to the will while in the presence of the testator and at the testator's direction or request.
Writing: A Virginia last will and testament must be in writing to be valid.
Beneficiaries: A Virginia last will and testament may make a disposition of property to any person.
Other types of recognized wills:
Holographic Wills: A holographic will is one that is handwritten by the testator. Although Virginia law recognizes a handwritten will, state laws can be very particular regarding handwritten wills. Handwritten wills that are not properly executed and proved are invalid in Virginia
Distribution of Property:
A will is a legal document created by you to determine how your property, known as your estate, is distributed after your death. Your estate consists of assets and property including bank accounts, homes, land, furniture, automobiles, and securities (stocks and bonds). In general, Virginia laws allow you to dispose of your property as you wish once your debts have been paid and the rights of your surviving spouse and children have been covered.
Other Purposes of Wills:
LegalZoom's Virginia wills form may be used to designate a guardian for any minor children.
Our Virginia wills form may be create a trust and designate a trustee to handle an estate (property left after death) on behalf of children or others.
Our Virginia wills form may also be used to name an executor to handle a decedent's (the person who died) property and affairs from the time of death until an estate is settled.
Notable exceptions to the ability to distribute property:
Jointly owned property with the rights of survivorship automatically passes onto the survivor.
The surviving spouse has the right to an elective share in the augmented estate (essentially, the value of the decedent's probate estate, reduced by funeral and administration expenses, homestead exemption, property exemption and enforceable claims plus the value of the decedent's reclaimable estate). The percentage of the estate allowed to the surviving spouse is determined on a sliding scale based upon the number of years of the marriage at the time of death of the decedent.
Providing for Pets
Under applicable Virginia laws, a trust designating a caretaker for a pet after the owner's death is valid. The pet trust terminates when the pet dies (or, if it was created for more than one animal, when the last pet dies). The testator would have to create a testamentary addition to the will (known as a pour over will) that would devise the pet to a trustee. Legalzoom's Virginia wills form gives you the choice of providing for your pets.
Changing and Revoking
A Virginia will and testament may be changed whenever the testator desires.
A Virginia will and testament can be changed through a codicil, which is a document stating additions or changes to the original will. Codicils must be executed in accordance with Virginia probate laws.
Revoking a Will
A Virginia will and testament, or any part thereof, can be revoked:
By a subsequent will that revokes, or partially revokes, the prior will expressly or by conflicting or different parts; or
By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator or by another person in the presence and by the direction of the testator.
Revocation of a will in its entirety revokes its codicils, unless revocation of a codicil would be contrary to the testator's intent.
Probate and Estate Taxes
Probate is a legal process for starting the transfer of property when the testator dies. The procedures validate the Virginia last will and determine ownership of the property. Property that does not pass via community property, right of survivorship, trust, or insurance is subject to probate proceedings.
After the Virginia last will is admitted at court, the executor files applications for the probate of a will and for legal documents called letters testamentary.
Several important functions of probate proceedings include:
Collecting, or taking possession of, the decedent's property.
Protecting and preserving the decedent's estate.
Paying all debts, claims and taxes.
Determining who is entitled to the assets and distributing the property according to the Virginia last will.
Virginia's estate tax is a "pick-up" tax designed to absorb the federal estate tax credit for state death taxes. No additional estate tax is imposed. The federal tax is based on the value of assets in the taxable estate. The Virginia estate tax is equal to the state death tax credit allowed on the federal tax return. Filing a Virginia estate tax return does not increase the total tax liability of the estate, but instead redirects revenues to the state which would go to the federal government.
It is extremely important to make a Virginia will if you want to control the distribution of your estate. If you die without a valid will, you are said to have died "intestate" and your property will be distributed according to strict Virginia state laws.
The net estate (after paying debts, taxes, administrative costs, and funeral expenses) of a decedent is distributed to the surviving spouse and other heirs in adherence to Virginia state laws.
The surviving spouse receives the entire estate, unless the intestate is survived by on or more children of whom the surviving spouse is not a parent, in which case two-thirds of the estate goes to all the intestate's children and their descendants and the remaining one-third of the estate goes to the intestate's surviving spouse.
If you make a Virginia will, your valid will prevents the laws of intestacy from deciding the distribution of your estate.