Your will allows you to nominate an executor for your estate and to direct how you want your assets to be distributed after your death. It also allows you to appoint a guardian to care for your children and to establish trusts. To be valid in Virginia, your will must comply with state law.
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The legal requirements for a will in Virginia are similar to those in other states. You must be 18 years of age or older, and you must have the mental capacity to understand what a will is and the consequences of preparing and signing it. You must freely agree that the will expresses your intentions. In your will, it is important to revoke all previous wills and to declare that this document is your last will. Finally, you must sign it in front of two witnesses who in turn add their signatures with a statement that they observed you sign your will. After the witnesses sign, the Virginia State Bar recommends that an attorney who saw all three of you sign notarize the entire will. Otherwise, the court will require one of the witnesses to testify after your death. Holographic, or handwritten, wills are accepted in Virginia; no witnesses are necessary for a handwritten will.
Probating the Will
In Virginia, the Circuit Court for the city or county where the testator resided has jurisdiction to probate a will. According to the Virginia State Bar, you will be required to make a petition for letters testamentary, which will empower you to carry out all of your duties as executor. You must file other documents as well, including, but not limited to, evidence of the testator’s death, the original last will, an inventory of estate assets and their value, and copies of letters you are required to write to creditors, beneficiaries and others who may be entitled to be beneficiaries but are not named in the will. If the will was not notarized, you must make one of the witnesses to the will available to prove the will. In the case of a handwritten will, the entire document must be written, dated and signed by the testator in his own handwriting. For this type of will to be considered valid, two witnesses who have no interest in the estate must testify that the handwriting is that of the testator.
State Tax Considerations
Part of the probate process is to determine state taxes. The executor is expected to provide an inventory of all assets, along with their estimated value at the time of the testator’s death. According to the Virginia Estate Law website, in cases where the estate is valued at more that $15,000, a probate tax must be paid at the rate of 10 cents for every $100 of the value of the estate.
When a Virginia resident dies without a will, the state determines how the estate will be divided. If you have a spouse, everything passes to that spouse unless the deceased had children outside of that marriage, in which case the spouse will be granted one-third of the estate and the other two-thirds will be divided between all children. If the person died leaving neither a spouse nor children, all property will go to relatives, beginning with parents, then siblings and finally cousins. The entire estate will be given to the state if no relatives are found.
References & Resources
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