What is Required to Make a Will in Virginia?

A Virginia will must meet certain requirements to be valid. For this reason, you should consider each of the following issues before you create your will.

Last updated on April 30th, 2019

Wills are a common way for Virginia residents to take control of how the state divides their assets when they die.

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. 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.

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 Die Without 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 normal state inheritance laws. If you die without creating a will, the Commonwealth of Virginia will make the decision of what relatives will receive your property.

Virginia uses a priority system to decide who inherits your property when you die.

First, if you’re married, then all your property will pass to your spouse. If you’re not married, or your spouse is deceased, your property will instead to your children, parents, siblings, or other kin, in that order.

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 while the other one-third will pass to your new wife.

Unfortunately, if there are no relatives to inherit your property, your property would pass to the state of Virginia. 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 you must be of the proper age, mental capacity, the will must be signed and in writing, and the signing must be witnessed by at least two individuals.

1. Age Requirement

While there are a few exceptions, just about anyone can create a will in Virginia, as long as they are more than 18 years old.

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. In Virginia, you cannot make a will if you are of unsound mind due to age, sickness, or any other similar reason.

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 Virginia, no will is valid “unless it is in writing and signed by the testator, or by some person in the testator’s presence and by his direction.”

Essentially, this means that the will itself must be both in writing and signed by you or someone at your direction.

Further, oral wills are not valid in Virginia. The reason the will must be in writing is to prevent fraud, as written wills are easier to copy and disperse among any relevant parties.

4. The Signing of Your Will Must Be Witnessed

Finally, you must have at least two witnesses present when you sign your will. They must also sign the will in front of you in order to prove its validity.

While not required, it is also a good idea to get the will notarized. This means that a public notary (usually someone at your attorney’s office) will formally sign the will as a valid legal document.

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 if problems arise in the future.

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 if the will is in the testator’s handwriting and is both signed and dated.

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

Do I Need an Attorney to Make My Will?

There is no legal requirement that says an attorney must draft your will, it’s simply common practice to have one do so.

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.

For this reason, 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.

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 both keep it somewhere safe and distribute several copies to any interested parties. Usually, your attorney will keep a copy, and you should give copies to anyone who might receive something from the will.

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?

Yes. Even if you are married, you and your spouse should still 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 your personal share of that property.

Furthermore, separate wills allow you and your current spouse to account for children from previous marriages or other family members.

What Happens if My Will is Not Drafted Properly?

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

Wills cover many important aspects such as who will be the guardians of your children and who will inherit your property, so you’ll want to make sure the document will hold up in court if contested.

This could save your loved ones a great deal of time and money.

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 help drafting or reviewing a will, you should speak with an experienced estate attorney.

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