How to make a will in Virginia

A guide to Virginia probate laws.

Elissa

Elissa Suh

Published August 19, 2020

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Who can write a will in Virginia?

Anyone who is at least 18 years old or an emancipated minor, if they are of sound mind, may write a will in Virginia.

What are the requirements for witnessing a will in Virginia?

Every will must be signed by at least two competent witnesses in the presence of the testator.

Can witnesses be beneficiaries of the will in Virginia?

Yes, but we recommend that you use two disinterested witnesses to avoid headaches for your heirs when you die.

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What are the requirements for nominating an executor in Virginia?

An out-of-state executor must post a surety bond unless there is a co-executor who lives in Virginia.

Corporate executors must be authorized in Virginia.

Can you create a holographic will in Virginia?

Yes, Virginia allows for a holographic will, but it must be written and signed in the testator’s handwriting, and proved by two disinterested witnesses after the testator’s death.

If only a portion of the will is handwritten, it must follow witnessing requirements to be considered valid.

Is Virginia a community property state?

No, Virginia is not a community property state.

In a community property state, each spouse has an equal share of property acquired during the marriage. Property acquired before the marriage is considered separate property.

Laws of intestacy in Virginia

In Virginia, when there is no will, the court will determine who receives the intestate estate based on the laws of intestate succession.

Virginia’s laws of intestate succession state that if you left a surviving spouse only, then they inherit your property. However, if the decedent is survived by both a surviving spouse and children/descendants of someone else, the surviving spouse only receives one-third of the intestate estate.

Otherwise, when there is no surviving spouse, then the intestate estate will pass along in the following order:

  • Children, or their descendants
  • Parent(s)
  • Siblings of the decedent, or their descendants (nieces and nephews)
  • Grandparents
  • Aunts and uncles of the decedent, or their descendants (cousins)
  • Great-grandparents
  • Siblings of the decedent’s grandparents, or their descendants
  • Spouse’s kindred

For someone to receive the estate, there must not be anyone left in the category above them. If an inheritor is dead, then their share typically passes to their children by a per capita or per stirpes designation, depending on whether the heir’s descendants are themselves still alive.

Filing the will in Virginia

While the testator is alive, the will may be filed with the circuit court, for “lodging, indexing, and preserving,” for a $5 filing fee.

After the testator dies, the will must be filed at the circuit court in the county where the decedent lived.

Estate administration without probate in Virginia:

In Virginia, certain assets can be distributed with a small estate affidavit if the total gross value of personal property is less than $50,000, and it has been more than 60 days since the decedent died, and no one has been appointed personal representative (or no application is pending).

Additionally, an asset can be distributed without an affidavit if the asset is worth less than $25,000, more than 60 days have passed since the decedent died, and no one has been appointed personal representative (or no application is pending).

Such asset include bank accounts, brokerage accounts, tangible personal property, but not real estate or land (real property).

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About the author

Personal Finance Editor

Elissa Suh

Personal Finance Editor

Elissa is a personal finance editor at Policygenius in New York City. She writes about estate planning, mortgages, and occasionally health insurance. In the past she has written about film and music.

Policygenius’ editorial content is not written by an insurance agent. It’s intended for informational purposes and should not be considered legal or financial advice. Consult a professional to learn what financial products are right for you.

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