How to make a will in Virginia

Everything you need to know about making a will in Virginia

Elissa

By

Elissa Suh

Elissa Suh

Senior Editor & Disability Insurance Expert

Elissa Suh is a disability insurance expert and a former senior editor at Policygenius, where she also covered wills, trusts, and advance planning. Her work has appeared in MarketWatch, CNBC, PBS, Inverse, The Philadelphia Inquirer, and more.

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A last will and testament is a legal document that contains instructions about who gets your belongings when you die and lets you choose a guardian for a minor child. A will is the first step to creating a solid estate plan, which can also include other documents, like a durable power of attorney, living will, and a trust. If you live in Virginia, you need a will to make sure your loved ones get the assets you want them to have — otherwise, a probate court may determine who gets what.

Live somewhere else? See our guide to making a will in your state

Creating a Virginia will

You have the following options when getting a will:

  • Hire an estate attorney

  • Use an online will service

  • Make one on your own by filling out a form or writing one from scratch

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How much does it cost to make a will?

An estate attorney can charge as much as hundreds or thousands of dollars to prepare your will and the cost could be higher in the city than it would be in a smaller town. However, it may be necessary for people with complicated estates or many assets. 

Can I make my own will in Virginia?

To make a will by yourself without a lawyer you can use a will template or an online will-making service, which may provide guidance. 

Free wills, like DIY templates, aren’t usually tailored to your preferences and may not be sufficient if you have a more complicated plan for giving away your assets or if, for example, you want your will to create a testamentary trust upon your death. 

Handwritten wills 

Virginia law allows for a holographic wills — handwritten wills that don’t have witness signatures — but they must be entirely written and signed in the testator's handwriting. Upon the testator’s death, a holographic will in Virginia must be proved by two disinterested witnesses. If only a portion of the will is written by hand, it must follow standard witnessing requirements to be considered valid. [1] (§2-403) 

Virginia will requirements

In order for your will to be valid, it must follow all the requirements set by the state, which usually pertain to the person writing the will, the testator, and how the will is constructed and executed. An invalid will won’t pass muster in probate (more on that later) and will prove a headache to your loved ones after you’ve died.

Testator

Anyone who is at least 18 years old or an emancipated minor, if they are of sound mind, may write a will in Virginia. (§64.2-401)

Witnessing

Every will must be signed by at least two competent witnesses in the presence of the testator. Virginia law does not prohibit a beneficiary from acting as witnesses of a will, but we recommend that you use two disinterested witnesses to avoid headaches for your heirs when you die. (§2-405)

→ Learn more about witnessing a will

Executors

Executors must be “mentally competent” and at least at least 18 years old (Virginia's age of majority). An out-of-state executor must post a surety bond unless there is a co-executor who is a Virginia resident. Corporate executors must be similarly authorized to do business in Virginia. (§64.2-1426)

→ Learn more about what an estate executor does

Do Virginia wills have to be notarized?

You do not need to notarize a will in order for it to be valid. Notarization cannot take the place of proper witnessing outlined above.

After you die, your witnesses must typically appear in court to verify your will, but you can include a self-proving affidavit to bypass this requirement and greatly ease the probate process after you've passed away. The affidavit requires notarization, for which you’ll have to pay a small fee to a notary public. (§64.2-452)

→ Learn how to get a self-proving affidavit

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 fee. Otherwise, you can store the will somewhere safe. (§64.2-409)

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

→ See also: Does a will need to be probated?

Virginia probate

Probate is the process of administering the decedent’s estate to the proper beneficiaries and heirs. After the testator dies, a probate judge determines whether or not the will is a valid legal document, and the testator's family and loved ones will have a chance to contest the will if it is ambiguous or poorly constructed during a court hearing.

It's the executor's job to initiate probate proceedings, and depending on what the decedent owned the filing procedures to distribute the deceased's assets in Virginia can vary. Certain assets can be distributed with a small estate affidavit if the total gross value of personal property is less than a certain dollar amount.

→ Learn more about how to avoid probate

Estate and inheritance taxes

Virginia no longer levies a state-level estate tax as of 2007. However, Virginia estates worth over the $12.06 exemption limit in 2022 will still owe federal estate tax. 

→ Learn more about who has to pay estate tax

Dying without a will

When someone dies in intestacy (without a will), the court will determine who receives assets based on state laws of intestate succession, and those heirs may not be who you would’ve wanted. To prevent that from happening, you need to create an estate plan that includes a will. 

→ Learn more about what happens when you die without a will

Intestate succession in Virginia

Virginia law specifies that:  

  • If the deceased person left behind only a surviving spouse, then they inherit the estate. 

  • If the decedent is survived by both a surviving spouse and children or descendants of someone else, the surviving spouse only receives one-third of the estate. (§64.2-202) 

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 surviving 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. (§64.2-202)

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References

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Policygenius uses external sources, including government data, industry studies, and reputable news organizations to supplement proprietary marketplace data and internal expertise. Learn more about how we use and vet external sources as part of our

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  1. Code of Virginia

    . "

    Title 64.2 Wills, Trusts, Fiduciaries

    ." Accessed December 28, 2021.

Author

Senior Editor & Disability Insurance Expert

Elissa Suh

Senior Editor & Disability Insurance Expert

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Elissa Suh is a disability insurance expert and a former senior editor at Policygenius, where she also covered wills, trusts, and advance planning. Her work has appeared in MarketWatch, CNBC, PBS, Inverse, The Philadelphia Inquirer, and more.

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