A last Will and Testament is a written document directing the disposition of your property upon your death. The Will itself need not be complicated. To be valid under Virginia law, however, a Will must satisfy certain rules and formalities, which are designed to ensure the document genuinely reflects your intentions.
Requirements for a Valid Will
To satisfy the capacity to make a Will in Virginia, you must be an adult, know the “natural objects of your bounty” (that is, know who your closest family members are even you do not intend to leave them anything), know what you own, and know how your wishes to dispose of your property at your death affect what you own (that is, you know that if give a particular item to your brother, you cannot also give it to your neighbor…unless your desired legacy is that your estate pays a lot of legal bills in an effort to determine what you really wanted to do).
Although the capacity to make a Will is necessary, it, by itself, is not enough for your Will to be valid. You must also act freely and voluntarily when making your Will. If you make a Will because you were the victim of another’s undue influence, fraud, or duress, your Will might be declared invalid after you die.
You must also sign your Will as the law directs, including any witness requirements. Unless your Will has the proper self-proving affidavits, your witnesses must offer testimony that you followed the proper rules when signing your Will. Without this testimony, the Will may be inadmissible and the property that your Will controls may end up being inherited by your next-of-kin as determined by the state’s rules for inheritance when no valid Will exists.
Does a Will Do Anything Beyond Distributing My Property?
Yes, a Will serves many functions beyond giving away property. A Will enables you to name someone to serve as your Personal Representative who oversees your property and estate after your death and makes sure that your debts are paid and that your heirs receive their inheritance. If you do not have a Will then the circuit court clerk can oversee the appointment of a personal representative by following the state rules for who can serve.
If you have minor children, then your Will is the document through which you nominate someone be your children’s guardian and to raise them if their other parent cannot do so. You can also nominate someone to serve as trustee to oversee and administer your minor children’s inheritance until your children reach the age that you consider them able to manage the inheritance themselves.
Does My Will Expire?
In Virginia, a Will never expires or becomes too old to be valid. Your Will remains valid unless and until you decide to revoke it, either by destroying the original or more common, make a new Will. However, your Will may not keep up with changes in your or your family’s circumstances. If you have children and/or get married after you make a Will, your children and spouse are entitled to receive an inheritance from you even though your Will did not mention them. It is a good practice to regularly review your Will (and other estate planning documents) to ensure that it reflects your wishes, that it is up-to-date, and to verify that the people you nominate to serve as your Personal Representative continue to be willing and able to serve.
Do I Need to Work with an Estate Planning Attorney?
Wills seem “easy” to write and many people attempt to write their own Wills or use an online Will creation service. Unfortunately, these do-it-yourself documents often miss critical provisions, fail to present options tailored to your unique family circumstances, inadequately inform you about which of your assets (if any) the Will controls, fail to comply with Virginia law, or do not provide adequate information on how to conduct the signing ceremony. When it comes to your final wishes, any shortcuts you take will have to be fixed by your grieving heirs. The experienced attorneys at Promise Law are happy to assist you with your comprehensive estate planning needs, including Will- or trust-based planning. Call us today at (757) 690-2470 to learn more.
