10/25/2011

Wills in Virginia

A Will is a signed, written document that directs what is to be done with one's worldly goods after death.  Each state has its own specific requirements for a valid Will.  Here are the requirements for Virginia:

  • The person making the Will (the "Testator") must be mentally competent and at least eighteen years old
  • The testator must have the intent to create a Will that designates who is to receive the assets of the estate
  • The Will must be in writing and signed by the testator or a person designated to sign on the testator's behalf.
  • The Will must be witnessed by two persons, who sign their names in the presence of each other and the testator.

A Will can be handwritten, but it must be completely handwritten by the testator.  A fill-in form which is partially typed and partially handwritten will not be a valid Will.  A handwritten will does not need to be witnessed, but two witnesses will need to identify the testator’s handwriting upon death.

A Will is valid until it is revoked, whether by physically destroying it or by signing a new Will.  In Virginia, divorce partially revokes a Will so as to remove the ex-Spouse as an heir.  A Will can be changed whenever desired, either through an amendment known as a codicil or by executing a new Will.  If the change is substantial, such as disinheriting someone, or changing the proportion by which heirs inherit, it is advisable to make a new Will to show clearly the intended changes. 

Don’t have a Will? If you don’t have an estate plan, Virginia has one for you.  State law dictates who will receive your estate if you die without a Will, or “intestate”.  If you are married, your property passes to your spouse.  If you have children from another relationship, the children and their descendants receive two-thirds of the estate and the surviving spouse receives one-third.

If you own property jointly with right of survivorship, ownership transfers to the joint owner automatically upon death.  If the estate is large and subject to estate taxes, a portion escapes tax on the death of the first spouse because there is no tax consequence of property passing from spouse to spouse.  There may be estate tax due on the entire estate at the death of the survivor, something that could have been avoided with a well-drafted Will. 

A revocable living trust is considered to be a Will substitute since the trust designates who should receive the estate upon the death of the trustmaker.  It does not eliminate the need for a will which disposes of the assets that were not transferred to the trust, or which could not be placed in the trust. 

It can be tempting to buy do-it-yourself Will software.  It is inexpensive, done on your own time and in the privacy of your home.  Despite the lure, consider the impact on your heirs if your Will is declared invalid, and the laws of intestacy control how your property is distributed.  

Law Office of Eileen Guerin Swicker

20 W. Market St. Suite E Leesburg, VA 20176 Tel: 571-918-0616 Fax: 703-459-9620