How to make a will in Virginia

A guide to Virginia probate laws.

Elissa

By

Elissa Suh

Elissa Suh

Personal Finance Editor

Elissa Suh is a senior editor of estate planning at Policygenius in New York City. She has researched and written extensively about wills, trusts, and personal finance since 2019, with an eye towards making difficult (and at times gloomy) topics easy to understand for readers. Her articles and data stories has been cited by the likes of MarketWatch, CNBC, PBS, Inverse, The Philadelphia Inquirer, and more.

Published August 19, 2020|2 min read

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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 to next of kin 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).