As discussed in our post A Brief Introduction to Estate Planning and its Many Considerations, a Last Will and Testament (sometimes just referred to as a “will”) is one of the most commonly known and used estate planning tools, which details how you would like your estate disposed of upon your death. Here, we extend that prior discussion, and introduce you to various important components and questions regarding a last will and testament in Virginia.
Important Definitions & Terminology
A Testator is the individual who has died, and left a last will and testament detailing the disposition of his or her property.
An Executor is the individual named in the last will and testament, charged with ensuring that the terms of the will are carried out.
A Guardian may be named and given the responsibility of caring for the testator’s minor children.
Issue refers to all of an individual’s descendants of all generations.
Bequests or Bequeaths refer to giving property to another party, as spelled out in a last will and testament.
The Residuary Estate is what remains after all bequests are honored, and all debts, taxes, and other associated costs are paid.
Do I Need a Last Will and Testament?
Generally, yes, everyone – even you – should have a will in place! Although it is important for everyone to have a will, and there are many reasons for this, a will is particularly important in two situations.
First, do you care, even the slightest bit, what happens to your property after you die? Who will your home, vehicle, vacation property, etc. go to? What will happen to your bank account(s), retirement account(s) and other similar assets? If you don’t spell this out in a will, the Commonwealth of Virginia will dictate the disposition of your property.
Secondly, and perhaps the biggest thing that pushes people to write a will, is having young children. A will is where you can detail who you would like to care for your children, both physically and financially, after your death. Without question, all parents want what is best for their children! Leaving their care to chance, by not spelling it out in a will, seems quite contradictory to that inherent desire.
Types of Wills
In Virginia, two types of wills are recognized:
Written & Witnessed Last Will and Testament. This is the traditional document that most people are familiar with, and which requires that a number of criteria are met in order to be considered valid. It is highly suggested that you employ an attorney in order to ensure that the document meets all of the requirements, which are discussed in detail below.
Holographic Will. This document is entirely handwritten by the testator and does not have the signatures of any witnesses. That the testator did, indeed, hand write the entire document must be proven by at least two disinterested individuals!
Is My Last Will and Testament Valid?
In order for a last will and testament (note that this does not refer to a holographic will) to be valid in Virginia, a number of requirements must be met:
You must be at least 18 years old and of sound mind. That is, you must be capable of understanding (1) the nature of what you are involved in by writing and executing your last will and testament; (2) the elements comprising your last will and testament; and (3) how your property will be disposed of in accordance with your last will and testament, including who will receive your property.
You must have testamentary intent – you intend for this particular document to serve as your last will and testament.
The last will and testament must be in writing and signed by you.
At least two individuals must witness your signing the document, as indicated by their signatures at the end of your last will and testament.
If you are updating, revising, or otherwise changing your last will and testament, you must execute a codicil. This document must be executed with the same formalities as the initial will, as discussed above.
A last will and testament is often considered the backbone of estate planning, and is a document that ought to be discussed with, and drafted by, an attorney so as to ensure that it meets all legal requirements and properly disposes of your property. If you think that it’s time to begin planning for the future, please get in touch with us, and let’s see how we can help you!