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Frequently
Asked Questions Regarding Wills
1. What is a will?
A will is a person's written declaration as to the manner in which
he or she wishes to dispose of his or her property after death.
The individual who makes the will is referred to as the "testator."
In order for a will to be valid in Virginia, the will must satisfy
certain requirements that are set forth in the applicable sections
of the Code of Virginia (statutes enacted by the Virginia General
Assembly).
2. What are the requirements for a valid will under Virginia law?
The will must be in writing and be signed by the testator personally
or by someone else in the testator's presence and by his direction.
Unless the will is completely in the handwriting of the testator
(including signature and date), it must be signed or acknowledged
in the presence of two witnesses who must subscribe in the presence
of the testator and each other. And in order to dispose of the testator's
property, the will must identify the property and the person who
will receive the property with reasonable certainty.
3. Who may make a will?
Persons who are at least 18 years of age and of sound mind may make
a will. In general, a testator is held to have capacity to make
a will if the testator knows his property and the objects of his
or her bounty.
4. What provisions are commonly included in
a will?
The contents of a will depend on the needs of the individual and
vary greatly from one person to another. For example, the estates
of some individuals are large enough to include provisions that
can reduce estate taxes. Other individuals need provisions that
create trusts for minor children or otherwise provide for minor
or disabled children. The following are provisions often included
in wills:
a. An opening clause identifying the testator, setting
forth the testator's domicile, declaring the instrument to be
a will, and revoking prior wills and codicils;
b. A tangible personal property clause defining certain
personal property and providing for the disposition of that property
or making a reference to a separate list disposing of tangible
personal property;
c. A bequest clause making special dispositions of cash
or personal property;
d. A real property clause identifying and making a disposition
of the testator's real estate;
e. A residuary estate clause transferring ownership of
all assets not otherwise disposed of by the will, providing for
the addition of assets to an existing living trust; or providing
for an alternative disposition of assets if the primary beneficiaries
predecease the testator;
f. A trust for minors clause creating a trust to hold and
manage property for beneficiaries who have not attained a certain
age at the time of the testator's death;
g. A guardian clause naming a nominee or nominees for guardian(s)
for any minor children;
h. A debts and expenses clause providing for the source
for payment of the debts and expenses of the testator's estate;
i. A taxes clause directing how the taxes are to be apportioned;
j. An appointment of trustees and executors clause(s) designating
certain individuals or corporations to administer the estate (referred
to as "executors") and to manage any trusts;
k. A testimonium clause establishing that the testator
has executed the document with the full knowledge and intention
that it is his or her last will and placing the testator's signature
at the end with a date of execution;
l. An attestation clause which often includes proof of
the formalities of the will.
5. What are the primary reasons for making
a will?
Every mentally competent adult should have a will for the following
reasons:
a. You can direct how you want your property divided at your death;
b. You can name the person you want to handle your estate;
c. You can reduce the expenses of administering your estate;
d. You can reduce estate taxes;
e. You can nominate a guardian for your minor children;
f. You can establish a trust for the support and education of
your children without the necessity of costly court proceedings.
6.
How long is a will valid?
A will is valid until the testator properly revokes the will. This
can be done in any number of ways. For example, the testator may
revoke an earlier will in writing by making a later will. A testator
can also revoke his or her will by physical destruction such as
by tearing it up or burning it.
The Code of Virginia contains various statutory provisions that
may affect the disposition of a person's property at his or her
death regardless of what is provided in your will. For example,
if the testator is married, his or her spouse may have rights under
Virginia law in the testator's estate regardless of what is provided
in the will. And, if you divorced after making your will, the law
may consider your will partially revoked.
7. What is a codicil?
A codicil is a written document that is intended to amend or change
a will. A codicil is generally used only for minor changes. In fact,
in the modern era of computerized word processing, codicils are
not recommended and used with much less frequency.
8. What happens if a person dies without a
will?
If a person dies without a will, he or she is considered to die
"intestate," and his or her property is disposed of under
the Virginia laws of intestate succession (except for property passing
outside a will such as certain jointly owned property and life insurance
as discussed below). These laws are outlined specifically in the
Code of Virginia. In general, if the decedent (the person who has
died) is married at the time of his or her death, the decedent's
estate passes entirely to the spouse unless there are descendants
of the decedent surviving that are not also descendants of the surviving
spouse (for example, children from a prior marriage). If there are
descendants who are not also descendants of the surviving spouse,
the surviving spouse takes one-third with the remaining two-thirds
to the other descendants who are not descendants of the surviving
spouse.
9. If a person has a will, does the will control
disposition of all property owned by the decedent at his or her
death?
No, there are a number of assets or rights to property or money
that pass as a result of the decedent's death outside of the will.
For example, property that is held jointly with another person with
the right of survivorship will pass directly to the survivor upon
the death of the decedent. Payable on death accounts, life insurance
contracts with a named beneficiary, and retirement benefits payable
to a named beneficiary are examples of other assets that may pass
outside of the will.
In most cases, joint ownership is not a good substitute for a valid
will. Joint ownership between a husband and wife can have adverse
consequences on estate taxes, and joint ownership between a parent
and child can cause unexpected gift taxes.
In any event, a will must be carefully coordinated with assets that
pass outside of the will.
10. What information will my attorney need
to prepare my will?
In developing your estate plan, including making your will, it is
important to take the following steps:
a. Prepare an inventory of your assets. Make a list of all of
your property, real and personal, life insurance policies, and
retirement plans, and assess the value of each asset.
b. Prepare an inventory of your liabilities. Make a list of all
debts and obligations, including principal amounts, payees, and
essential terms.
c. Prepare a list of your family members and other persons whom
you wish to participate in your estate. Determine an individual
or corporation who might be an appropriate executor and trustee.
Also, decide what individual(s) will be your nominee to take care
of minor children.
d. List your objectives and how you want your assets distributed.
Your lawyer
and accountant (or other financial advisor) can help you work out
the details of your will and overall estate plan. This preliminary
information will be helpful in getting your plan started.
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