Making a Virginia last will and testament is important if you wish to have control over the distribution of real and personal property upon your death. Virginia wills give the person writing the will, called the testator, the opportunity to provide for a spouse, children, other loved ones, and pets after her death. You can also make a charitable contribution via your Virginia will.
It is important to note that a last will differs from a living will in that the latter provides instructions in the event that you become incapacitated and cannot make decisions regarding your health and medical care. Virginia explicitly allows living wills, called advance medical directives.
Do you need a last will and testament?
Although a last will and testament are not legally required, without a will, the laws of intestacy will determine the distribution of an estate's assets. The outcome under intestacy rules may not coincide with the decedent's wishes, however, which means it is generally advisable to create a last will and testament.
Having a last will and testament can be beneficial for many reasons, including the fact that it allows the testator to choose the executor of her estate, the person who will be responsible for carrying out the wishes contained in the will. If you do not choose an executor of your estate in a will, a court will do so for you.
A will can serve various purposes, most notably by providing a way for the testator to detail how assets, such as real estate, personal possessions, and bank accounts, should be divided upon her death. In general, Virginia law permits you to dispose of your property as you see fit, with some exceptions, as described more fully below.
Moreover, a Virginia will allows you to name someone as the legal guardian of your children and/or handle property left to minor children.
In addition to testamentary trusts (i.e., trusts created through a last will and testament) that provide a benefit for people, Virginia law permits the creation of a trust to provide for the care of an animal alive during the settlor’s lifetime. A Virginia will gives you the opportunity to set up this kind of pet trust, which terminates upon the death of the animal or animals provided for in the trust.
The provisions of a Virginia will cannot be effectuated until it is proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person. In Virginia, the executor must request letters testamentary from the appropriate circuit court so the will can be admitted to probate. Once debts and taxes of the estate are paid, the property as designated in the will may be distributed.
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In Virginia, this means that property is distributed to the surviving spouse unless there are also surviving children who are not also descendants of the surviving spouse; in this case, the spouse takes one-third of the estate and the children two-thirds. If there is no surviving spouse, the decedent’s children inherit the entire estate.
If there is no surviving spouse or children, the estate goes to the decedent’s parents, then siblings, and so forth down the line. The closer the relative, the higher the priority to inherit.
Accordingly, you can see the importance of making a Virginia will if you would like to have control over the distribution of your assets and avoid the application of intestacy laws.
Exceptions to the ability to distribute property
Not all property owned by the testator may pass through a Virginia will. Property owned in joint tenancy with the rights of survivorship, for example, passes automatically to the survivor.
Although generally, you may provide for the distribution of your assets after your death as you wish, Virginia law does give a surviving spouse the right to an elective share in the augmented estate (the value of the estate adjusted for funeral expenses, homestead exemption, and other reductions).
Form a last will in Virginia
The basic requirements for a Virginia last will and testament include the following (VA Code Title 64.2, Chapter 4):
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: In order to be valid, the will must be signed by the testator or by someone other than the testator in her presence and by her direction.
- Witnesses: At least two witnesses who are also not beneficiaries and who sign in the presence of the testator and at her direction are required for a valid Virginia will.
- Writing: A Virginia will must be in writing to be valid.
- Beneficiaries: Virginia does not limit the class of beneficiaries who may be included in a will.
Other recognized last wills in Virginia
In addition to the last will and testament as described above, Virginia also recognizes holographic (handwritten) wills as valid legal documents. In Virginia, in order to prove a holographic will in probate, two disinterested witnesses must appear to vouch for the handwriting of the testator.
Changing a Virginia last will and testament
A Virginia last will and testament may be changed whenever the testator wants to do so through a codicil, an amendment to the will that must follow the execution procedures of wills.
Revoking a Virginia last will and testament
The revocation of a Virginia will can be accomplished by a subsequent will or codicil or by cutting, burning, tearing, canceling, obliterating, or destroying the will or codicil.
LegalZoom can help you create a last will in three easy steps. LegalZoom also offers other legal products to help you prepare for the future, such as a living will and a power of attorney.
Virginia last will and testament FAQs
Do I really need a will in Virginia if I don't have much money or property?
Yes, you should have a will in Virginia even if you don't think you own much. Without a will, Virginia's intestate laws decide who gets your stuff, and it might not be the people you want to help. A will also lets you pick someone you trust to handle your affairs after you die (called an executor). Without a will, the court picks someone for you, and it might be a family member you don't get along with.
What makes a will legally valid in Virginia?
First, you must be at least 18 years old and mentally able to understand what you're doing. Second, your will must be written down (not just spoken). Third, you must sign it yourself, or have someone sign it for you while you watch and tell them to do it. Fourth, two people who won't inherit anything from your will must watch you sign it and then sign it themselves as witnesses. These witnesses can't be people who will get money or property from your will. You don't have to get your will notarized, but it can make things easier later when your family goes to court.
Can I write my will by hand instead of typing it?
Yes, you can write your entire will by hand in Virginia, and it's called a holographic will. However, this type of will can be harder to prove in court after you die. The whole will must be written in your handwriting. You can't type part of it or have someone else write any of it. After you die, two people who knew your handwriting will have to go to court and swear that you really wrote the will yourself. If your handwriting is hard to read or if people can't recognize it, the court might not accept your will. That's why it’s generally recommended to type your will and have witnesses sign it instead.
How do I change my will if my life situation changes?
You can change your will by writing a codicil, which is like an official update to your original will. A codicil must follow the same rules as making a will. You need to write it down, sign it, and have two witnesses sign it, too. However, making several codicils can get confusing and cause problems later. In some cases, you might write a new will instead of using codicils, especially for big changes like getting married, having kids, or getting divorced. When you make a new will, you should clearly state that it cancels all your previous wills. This prevents confusion about which document contains your final wishes.
What happens during probate and how long does it take?
Probate is the court process where your will gets officially approved and your executor gets permission to distribute your property. Your executor takes your will to the local circuit court along with your death certificate and asks the judge to approve them as the person in charge of your estate. The process usually takes several months to over a year, depending on how complicated your situation is. During probate, your executor pays your debts, notifies people who might have claims against your estate, and then distributes your property according to your will.
Can I leave money for my pet's care in my will?
Yes, Virginia law allows you to create a pet trust in your will to make sure your pet is cared for after you die. You can set aside money specifically for your pet's food, vet bills, and daily care. You'll need to name someone to take care of your pet and someone else to manage the money (though the same person can do both jobs). The amount of money you leave should be reasonable based on your pet's expected lifespan and needs. If you leave too much money, a court might reduce it. When your pet dies, any leftover money goes to whoever you choose in your will, or to your family if you don't specify.
What's the difference between a will and a living will?
A will and a living will are completely different documents that do different jobs. Your will (called a "last will and testament") only works after you die and tells people how to distribute your money and property. A living will (also called an advance directive) works while you're still alive, but can't make medical decisions for yourself. A living will tells doctors and family members what kind of medical treatment you want if you're unconscious or can't communicate.
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