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 is 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 1/3 of the estate and the children 2/3. 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 to avoid the application of intestacy laws.
Exceptions to 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:
- 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.