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Making a Will in Virginia

How to make a will in Virginia and what can happen if you don't.

Steps to Create a Will in Virginia

Here's a quick checklist for making a will in Virginia:

  1. Decide what property to include in your will.
  2. Decide who will inherit your property.
  3. Choose an executor to handle your estate.
  4. Choose a guardian for your children.
  5. Choose someone to manage children's property.
  6. Make your will.
  7. Sign your will in front of witnesses.
  8. Store your will safely.
  9. Give your will to the court for safekeeping, if you prefer

Why Should I Make a Virginia Will?

A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:

  • leave your property to people or organizations
  • name a personal guardian to care for your minor children
  • name a trusted person to manage property you leave to minor children, and
  • name an executor, the person who makes sure that the terms of your will are carried out.

What Happens if I Don't Have a Will?

In Virginia, if you die without a will, your property will be distributed according to state "intestacy" laws. Virginia's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, great aunts and uncles, nieces and nephews, great grandparents, brothers and sisters of grandparents and their descendants, cousins of any degree, and the children, parents, or siblings of a spouse who dies before you do. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.

Do I Need a Lawyer to Make a Will in Virginia?

No. You can make your own will in Virginia, using Nolo's Quicken WillMaker. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Nolo's will-making products tell you when it's wise to seek a lawyer's advice.

What Are the Rules About Making and Signing Wills in Virginia?

To make a will in Virginia, you must be:

Your will disposes of any property or interest in property you have at the time of making it, as well as any property you acquire after making the will. Virginia Code § 64.2-401.

You must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see "Can I Make a Digital or Electronic Will?," below.) Type and print your will using a computer, or you can use a typewriter. Virginia does permit handwritten wills (Virginia Code § 64.2-403), but they are usually not a good idea.

To finalize your will in Virginia:

  • you must sign or acknowledge your will in front of two witnesses, and
  • your witnesses must sign your will in front of you. Virginia Code § 64.2-403.

While Virginia law allows you to have "interested" persons who stand to inherit from your will serve as your witnesses (Virginia Code § 64.2-405), it's usually best to have only disinterested witnesses to avoid any allegations of misconduct.

Holographic wills do not have to be witnessed, but at least two people need to be able to say that the will and your signature are wholly in your own handwriting. Virginia Code § 64.2-403.

Do I Need to Have My Will Notarized?

No, in Virginia, you do not need to notarize your will to make it legal.

However, Virginia allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.

To make your will self-proving, you and your witnesses will go to the notary and sign an affidavit that proves who you are and that each of you knew you were signing the will. Virginia Code § 64.2-452.

Should My Will Name an Executor?

Yes. In Virginia, you can use your will to name an executor who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker & Trust produces a letter to your executor that generally explains what the job requires. If you don't name an executor, the probate court will appoint someone to take on the job of winding up your estate.

Can I Revoke or Change My Will?

In Virginia, you may revoke or change your will at any time. You can revoke your will by:

  • cutting, tearing, burning, obliterating, canceling, or destroying all or part of your will with the intent to revoke it
  • ordering someone else to cut, tear, burn, obliterate, cancel, or destroy all or part of your will in front of you, or
  • making a new will that says it revokes the old will or that has contradictory terms to the old will. Virginia Code § 64.2-410.

If you and your spouse divorce (or if a court determines that your marriage is not legal), Virginia law revokes any language in your will that leaves property to your spouse. It also revokes any provision that names your spouse to be your executor unless you specifically state in your will that divorce should not affect the appointment of your executor. If you happen to remarry your spouse and do not make a new will, this rule will not apply. Virginia Code § 64.2-412. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help.

If you need to make changes to your will, it's best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).

Can I Make a Digital or Electronic Will?

In a few states, you can make a legal will digitally – that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. It is generally assumed that most states will allow them in the near future. At the time of this publication, legislation is currently pending in Virginia for consideration of adopting electronic wills in the state.

Where Can I Find Virginia's Laws About Making Wills?

You can find Virginia's laws about making wills here: Code of Virginia Title 64.2 Wills, Trusts, and Fiduciaries Subtitle II Wills and Decedents' Estates Chapter 4 Wills.

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