A Will is a signed written document in which a person directs what is to be done with his or her property after death. The person who makes a will is called a testator (male) or testatrix (female).
A will must be written and signed in a particular way, as required by the laws in the state in which the person signing resides. In Virginia, wills are witnessed by two witnesses, unless the will is totally in the handwriting of the testator. In practice, a notarized self-proving affidavit is executed at the time the will is signed so that the witnesses do not need to come to court to authenticate the will. The person must be over the age of eighteen (18), of sound mind, and free of undue influence.
The Code of Virginia sets forth documents that can be incorporated by reference into a will as well as powers which can be incorporated by reference into the will.
A testamentary trust may be established through the will. Unless waived in the will, in Virginia, each year an annual accounting must be submitted to the Commissioner of Accounts and fees based on the value of the trust assets must be paid.
A living person may revoke a will at any time. A will which is traced to the possession of the testator but which cannot be found at the testator’s death is presumed revoked.
A person may change a will as often as desired. Any changes to the will should be made with the same care and formality as is required for the execution of the will. A “codicil” is the legal document used to amend a will. Where changes are extensive, it is preferable to revoke the old will and make a complete new will rather than amending the old will with a codicil.
Under current Virginia law, a document which fails to meet all the legal requirements for a will may still be admitted to probate if it can be proven in court by clear and convincing evidence that the decedent intended it to be a will or an alteration to the will or a revocation of a will.
Additionally, Virginia has a policy of liberality and relaxation of rules in favor of soldiers and seaman.
Certain situations occurring after a will is made can affect the disposition of the estate such as birth of a child not provided for in the will or marriage or divorce after the will is made. Changes in tax laws can make the will ineffective to accomplish the testator’s goals from a tax standpoint.
The terms of a will do not supersede rights of survivorship in jointly held property or property rights with beneficiary designations. Accordingly, property held as joint tenants with right of survivorship or as tenants by the entirety will pass automatically to the survivor. Similarly, property held in trust or property with a named beneficiary (such as life insurance, retirement accounts, bank accounts with a P.O.D. designation, brokerage accounts with a T.O.D. designation) passes outside of the will.
There is no legal requirement that you have a will but if you fail to make one, administration of your estate may be more complicated and the distribution may not be in accordance with your desires. In Virginia, if the intestate decedent (the person dying without a will) is survived by a spouse and children, the spouse will receive all of the decedent's real and personal property that could have passed under the will unless the decedent has children who are not related to the surviving spouse. If one or more of the decedent's children is by a previous marriage, the spouse will receive only one-third of the decedent's real and personal property and the child(ren) will receive two-thirds. If the child is under age eighteen (18), a court proceeding would be necessary to be able to spend his or her share on the child's needs. If a Will is made, these problems and the additional expenses they entail can be avoided.
There are important reasons to have a will. You direct how you want your property handled after your death. You name the person you want to handle your estate. You can give powers to the Executor that you select. You can simplify the administration of the estate, decrease the expenses, and avoid or reduce estate taxes. You may provide for a trust for the support and education of your minor children without the necessity of court proceedings. You may select a guardian for your minor children. You may eliminate expensive court proceedings to dispose of real estate.
Our estate planning attorneys will meet with you to discuss the specifics of your estate. They will considered the type and amount of your assets, and your goals, and advise you on the best plan and documents to meet your needs.