Virginia Wills, Trust, and Probate

Death or incapacity is not something most people like to discuss. Planning for your death or incapacity, however, is necessary to protect you, your loved ones, and your assets. Preparing a plan for the distribution of your estate (assets, like your property and money) is a vital step in this important process. This estate plan most commonly includes a will, trust, and/or a durable power of attorney. Regardless of your age, health, or the amount of assets you own, it is important to create and update your estate plan with a Virginia wills attorney. An inadequately drafted will or other estate planning document is not a legacy you want to leave.

Virginia Will

What you choose to say in a Virginia will is very important and if worded incorrectly you will may be held invalid and your property may not be distributed as you desire. There are two ways to create a valid will in Virginia:

1. Non-hand-written will – If you wish to create a will that is not in your own handwriting (e.g. typed will), the will must include:
   • Competent person: the creator of a will must be of a sound mind (mentally competent), at least 18 years of age (unless the Virginia court has granted an exception)
   • Writing: the will must be in writing, even if it is not in your handwriting
   • Signature: the will must be signed by EITHER:
     • The testator (the person whose will it is) or
     • By some other person who is acting under the testator’s direction and in the testator’s presence.
   • Witnesses – At least two adult witnesses, present at the same time, must see you physically sign the will or you must point out and acknowledge your signature to the witnesses.
     • Witnesses CAN be beneficiaries under the will
2. Hand-written will (also known as a “holographic will”) – a Virginia will can be hand-written. But it must include:
   • Writing: that is ENTIRELY in your own handwriting
   • Witnesses: Upon your death or incapacity, at least two witnesses must testify that the handwriting is yours
   • Signature: the will must be signed by the testator

Notarization: notarization is not necessary in Virginia; however, if your will is notarized it can be automatically admitted to probate. If your will is not notarized, witnesses who originally signed the will may need to appear before the Virginia court and locating them may be difficult. Consulting a Virginia will attorney can help you have peace of mind that your affairs have been taken care of and meet the requirements of Virginia law.

Changing a Will in Virginia

A Virginia will can be changed by either:

1. Revoking the prior will and creating a new will
2. Using an amendment or codicil
3. Through a divorce or annulment of a marriage

The first option allows you to revoke your will by completely destroying the old will (be tearing or burning the will for example) and creating a new one. Virginia law requires that you tear or destroy your old will with the intent to revoke the will (accidentally destroying a will does not count).

The second option allows you to amend an old will by a codicil – usually a separate, attached piece of paper with changes. The third option is relevant only if, after making a will, the creator of the will divorces or has his/her marriage annulled. In this instance, the divorce or annulment will revoke any assets that were originally distributed to the former spouse through the original will.

Be sure to discuss any changes to your will with a Virginia will attorney.

Virginia Trust

Creating a trust in Virginia is another way you can distribute your assets after you have passed. The benefits of a Virginia trust include flexibility in confidentiality in how you distribute your assets, disposing your assets, and savings on taxes. Virginia law recognizes several kinds of trusts, such as charitable trusts, educational trusts, life insurance trusts, living trusts, and special needs trusts.

Creating a trust can be complicated and confusing. You should consult a Virginia estate planning attorney to help prepare a trust made for your specific requests.

Virginia Probate

Each asset that is part of an individual’s estate may be classified as either a probate asset or a nonprobate asset. A probate asset passes to the beneficiaries through a valid process of estate administration, such as a will. If any part of the estate is not designated to go to a particular person (for example if no will exists), that part will be distributed according to “intestate succession”, where provisions of Virginia law will determine which persons are entitled to receive the probate assets and the order in which the assets are distributed according to the beneficiary’s relationship with the deceased.

Intestate succession in Virginia is set out by law and may include the following relations in order (non-exclusive):

1. Spouse
2. Descendants – children, grandchildren, etc.
3. Parents
4. Brothers and Sisters
5. Half Blood
6. After-born heirs
7. Adopted Persons, persons born out of wedlock

In contrast, non-probate assets are not subject to estate administration and do not pass to beneficiaries under a will or other rules established by Virginia state law. Non-probate assets include jointly held property – property that is jointly owned by the decedent and other parties. Upon death, a person’s share of such property is automatically transferred. It is important that a Virginia attorney assists you in determining what kinds of assets are suitable for probate and transfer by a will or other instrument.

Virginia Statutes

Wills and Decedents' Estates, Title 64

1. Probate Code: Wills
   • Virginia Statutes, Tit. 64, Chp. 3, §§ 64.1-45 thru 64.1-96.11.
2. Probate Code: Intestate Succession
   • Virginia Statutes, Tit. 64, Chp. 1, §§ 64.1-01 thru 64.1-18
3. Probate Code: Administration of Estates
   • Virginia Statutes, Tit. 64, Chp. 6, § 64.1-116 thru 64.1-180.1
   Uniform Trust Code, Chapter 31
4. Virginia Trust Code
   • Virginia Statutes, Tit. 55, Chp. 31, §§ 541.01 thru 551.06