Everything you need to know about making a will in Virginia
Updated December 28, 20215 min read
Table of contents
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.
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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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.
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.
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.  (§2-403)
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.
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)
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)
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)
After the testator dies, the will must be filed at the circuit court in the county where the decedent lived.
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.
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.
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.
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
Siblings of the decedent, or their descendants (nieces and nephews)
Aunts and uncles of the decedent, or their descendants (cousins)
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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