What is Required to Make a Will in Virginia?

A Virginia will must meet certain requirements to be valid. Consider the following issues as you create your will.

What is a Will?

The will is the most common estate planning tool used in the United States. Making a will in Virginia is one of the most important things that you can do for your loved ones.

A Virginia will is a binding legal document that becomes effective upon your death. In your will, you name who will inherit your property, who will care for your minor children, who will be the executor of your estate, and much more.

The executor of your estate is the individual sworn to carry out the wishes expressed in your will. [1] Moreover, the executor will oversee the distribution of your property and ensure that, to the best of his or her abilities, your wishes are performed. [2]

Finally, the primary purpose of a will is to distribute your property upon your death. A will provides you with the flexibility to distribute your property as you wish. This means that you get to decide which family members or friends receive your property.

What Happens if I Don’t Have a Will?

Without a will the distribution of your estate becomes problematic. If you die without making a will in Virginia then your estate is called intestate. This means the distribution of your property is subject to state law.

If you die without creating a will, then the Commonwealth of Virginia will make the decision of what relatives will receive your property. [3] Furthermore, who your property will pass to without a will depends on what relatives are alive when you die.

In Virginia, all of your property will pass to your spouse if you are married. [4] In contrast, if you are not married then your property would pass to your next of kin. To give another example of intestate laws, if you have children from a prior marriage, and are newly married, your children will receive two thirds of your property and one third will pass to your wife. [5]

Unfortunately, if there are no relatives to inherit your property, your property would pass to the state of Virginia. [6] To avoid this situation, everyone, no matter their economic status, should create a will in Virginia. Creating a will gives both you and your family peace of mind upon your death.

Ultimately, by creating a will in Virginia you can properly distribute your property and handle other important matters in the event of your death.

What Are the Requirements to Make a Will in Virginia?

There are four requirements to make a valid will in Virginia.

  1. Age Requirement
  2. Mental Capacity
  3. Writing Requirement
  4. Witness Requirement

In order to successfully create a will in Virginia you must be of the proper age, mental capacity, the will must be signed and in writing, and the signing must be witnessed by two individuals.

1. Age Requirement

While there are a few exceptions, just about anyone can create a will in Virginia. For instance, you cannot create a will if you are merely an emancipated minor. [7] You must be at least 18 years old to create a will in Virginia. [8]

However, a few states have allowed minors to create wills by the age of 16. The rationale behind the age requirement is to ensure that minors are not taken advantage of or make a serious error when creating their will.

2. Mental Capacity

The next requirement in creating a will is that you need to be mentally competent. [9] In Virginia, you cannot make a will if you are of unsound mind. [10] This means that you cannot create a will in Virginia if you have some sort of mental disability that would impair your decision making ability.

Much like the age requirement, the rationale behind this rule is to ensure that an individual with a mental disability is not taken advantage of or making a grievous error when creating their will.

3. Your Will Must Be in Writing

In order make a will in Virginia, the will must be in writing. [11] Virginia has a strict writing requirement. If the will is not in writing, the will is not valid in the state of Virginia.

Additionally, the will must be signed by the testator to be valid. [12]

The testator is the person who created the will. Unless it is signed by the testator, the will is not valid. In Virginia, oral wills are not valid. The reason the will must be in writing is to prevent fraud.

4. The Signing of Your Will Must Be Witnessed

To create a valid will in Virginia, the signing of the will must be witnessed by at least two competent witnesses. [13] Both witnesses must witness the testator’s signing of the will.

That’s legalese that means two people must be present when you sign your will.

Additionally, the witnesses must also sign the document in front of the testator. [14]

While not required, it is also a good idea to get the will notarized. The purpose behind these requirements is to prevent fraud and ensure the best wishes of the testators.

Additionally, it’s ideal to have the witness’s signature notarized and to have the witnesses sign a self-proving affidavit. By signing a self-proving affidavit, the witnesses will forego the need to appear in court and provide testimony regarding the signing of the will.

What if No Witnesses Saw the Signing of the Document?

There is one exception to the witness rule. In the event that no witnesses see the signing of the document, the will can still be valid. A will can still be valid if the will is in the testator’s handwriting, and is signed and dated.

However, to prove this, two disinterested individuals must verify the testator’s handwriting and signature. [15] This type of document is called a holographic will. A holographic will is a handwritten document in the testator’s handwriting.

Additionally, the holographic will must be signed and dated by the testator.

Do I Need an Attorney to Make My Will?

There is no legal requirement to have an attorney draft your will.

However, a will includes extremely important instructions on how to handle your affairs in the event of your death. It’s the kind of thing you want to get right.

A lawyer can help you do that.

Therefore, if you choose to create your own will you should proceed with caution and follow the statutory requirements in order to avoid mistakes. However, as long as you follow the statutory requirements, just about anyone can create a will in Virginia.

Moreover, in order to ensure that you avoid errors, it is best to hire an experienced estate planning attorney.

What Should I do to Prepare My Will?

Whether or not you decide to hire an attorney to write your will, there are things you can do to prepare your will.

For example, if you have minor children then you need to pick a person that you can trust to be the guardian of your children.

Additionally, it’s important to think of a person you can trust to administer your estate.

Picking a trusted executor is essential to having your wishes carried out. You can choose an attorney, an heir, your spouse, or even a good friend to be the executor of your estate.

The other important issue you need to prepare for is the distribution of your property. In order to successfully accomplish this feat, you need to choose which friends and family members you want to leave property to.

Once you choose these individuals, it’s important to make a comprehensive list of your assets.

This includes all of your income, real property, tangible items, stocks and bonds, and anything else you choose to include. Finally, once you complete this you simply have to choose which friend or relative will receive which property.

Once your will is complete, it important to keep it somewhere safe. Your executor and family members will need the will in the event of your death. So you will want to keep your will in a safe and accessible place.

Once your will is safe and secure it is important to update it every few years. This way you can account for all of your property and ensure that the correct family members inherit your property.

Should I Have a Separate Will from My Spouse?

If you are married, you and your spouse should draft separate wills. While you and your spouse may jointly own several pieces of property, you should still have a separate will from your spouse in order to account for all of your property.

Furthermore, separate wills allow you and your current spouse to account for children from previous marriages or other family members. So even though you and your spouse’s wills may be similar, it is important that you have a separate document from your spouse.

What Happens if My Will is Not Drafted Properly?

The importance of a comprehensive and properly drafted will cannot be understated.

Wills cover so many important aspects such as who will be the guardians of your children and who will inherit your property.

It is in the best interest of your loved ones that the will is drafted properly.

If there is an error in your will then someone could challenge its validity. If the will is not valid or something is done incorrectly, your property could be tied up in a probate court after your death.

This could cost your loved ones time, money, and additional anxiety.

 Conclusion

A will is the most elementary estate planning tool. Everyone should have a comprehensive will in the event of their death.

A will allows you to name a guardian for your minor children and distribute your property upon your death.

The requirements to make a will in Virginia are fairly standard. As long as you are above the age of eighteen and suffer from no mental health issues you can create a will in Virginia.

If you need assistance drafting a will or working out your estate plan, call us for a consultation.


[1] Va. Code § 64.2-501

[2] Id.

[3] Va. Code § 64.2-200

[4] Id.

[5] Id.

[6] Id.

[7] Va. Code § 64.2-401

[8] Id.

[9] Id.

[10] Id.

[11] Va. Code § 64.2-403

[12] Id.

[13] Id.

[14] Id.

[15] Id.

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