Virginia Requirements for a Last Will & Testament

By Elizabeth Stock

To ensure your property is distributed to your friends and family the way that you intend, consider drafting a last will and testament. A will, also referred to as a testament, is a written document that describes how you want your property distributed upon your death. The document is referred to as your last will and testament because it is the last document of its kind you draft before your death. In Virginia, there are several things you must complete before a court will recognize your will as valid.

Requirements

According to Virginia law, anyone 18 or older who is mentally competent can execute a will. The threshold for competency is quite low, and generally you only need to possess an understanding of the property you own, and be aware of all of your beneficiaries. In addition, when signing the will, you must be free from pressure from other individuals. Two witnesses must be present when you sign the document, and they must then sign the will as well. While not required, having a will notarized may also be a good idea to prevent any challenges to the will at a later date.

Executor

The executor is the individual who administers your will and ensures that all of your property is distributed according to the terms of the will. In many cases, an executor is named in the will. If no executor is named, or the person named does not wish to serve as executor, the court will appoint an administrator. In Virginia, anyone can act as an executor as long as they are 18 or older. The executor does not need to be a Virginia resident; however, if a nonresident executor does not have a co-executor who is a resident of the state, the executor must post a bond to insure the value of the estate. The probate clerk will determine the amount of the bond.

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Types of Wills

Apart from a traditional written will, Virginia also recognizes a holographic will. A holographic will is a document that is completely in your own handwriting, not typed. Virginia law requires your signature and a date to be included at the bottom of a holographic will. Unlike a typed will, a holographic will does not need to be witnessed to be valid.

Consequences

If a court finds your will to be invalid because it does not meet one of the state’s legal requirements, your property will be distributed according to the rules of "intestate succession." In Virginia, intestate succession requires an estate to all go to your surviving spouse, unless you have children. If you die leaving a surviving spouse and children, then one-third is given to the spouse and the other two-thirds of the estate is distributed evenly between the children. If no spouse exists, all property is distributed to the children, or grandchildren. If no children or grandchildren exist, the property is distributed to your parents, if still living, and then to any siblings.

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Rules for Witnessing a Will

References

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