To create a will in Virginia, you need to be at least 18 and of sound mind, put your wishes in writing, and sign the document in front of two competent witnesses who then sign it themselves.1Virginia Code Commission. Virginia Code 64.2-403 – Execution of Wills; Requirements Add a notarized self-proving affidavit at the same signing and the probate court will accept the will later without having to track down your witnesses. Everything else is a question of what you want the document to say.
Who Can Make a Will
Virginia requires that you be 18 or older, or a legally emancipated minor, and that you have testamentary capacity at the time you sign.2Virginia Code Commission. Virginia Code Title 64.2 Chapter 4 – Wills Capacity is a practical test: did you understand you were making a will, could you recall what you owned, did you recognize the people who would normally inherit from you, and did you grasp how you wanted the property distributed? A diagnosis of dementia or mental illness does not automatically disqualify someone. What matters is your understanding in the moment you signed.
What Virginia Requires for a Valid Will
Oral wills are not recognized. Your will must be in writing and signed by you, or signed by someone else in your presence and at your direction, in a way that clearly shows the signature is intentional.1Virginia Code Commission. Virginia Code 64.2-403 – Execution of Wills; Requirements
Unless you handwrite the entire document yourself, two competent witnesses must be present together to watch you sign or to hear you acknowledge that the signature on the page is yours. Both witnesses then sign the will while you are present.1Virginia Code Commission. Virginia Code 64.2-403 – Execution of Wills; Requirements A beneficiary can technically serve as a witness, but using disinterested witnesses avoids any later argument about undue influence and is the safer choice.
Handwritten Wills
Virginia also recognizes a will written entirely in your own handwriting, called a holographic will, with no witnesses needed at signing.1Virginia Code Commission. Virginia Code 64.2-403 – Execution of Wills; Requirements The complication arrives after your death: at least two disinterested people must testify that the handwriting is yours before the court will accept the document. If your handwriting is unfamiliar to anyone still around, or if the will surfaces years later, that requirement becomes a real obstacle. A typed, witnessed, and notarized will is far more reliable.
Self-Proving Affidavit
After signing, you and both witnesses can sign a separate sworn statement in front of a notary confirming that the execution steps were followed.3Virginia Code Commission. Virginia Code 64.2-452 – How Will May Be Made Self-Proved; Affidavits of Witnesses This self-proving affidavit is optional, but it saves significant time at probate because the court accepts the affidavit in place of live witness testimony. Witnesses move, lose touch, and die; adding the affidavit while everyone is already in the room is one of the smartest things you can do.
What to Decide Before You Draft
Begin with an inventory. On the asset side, list real estate, vehicles, bank and investment accounts, personal property with meaningful financial or sentimental value, and any business interests. On the debt side, list the mortgage, car loans, credit cards, and other obligations. Your executor will need this information to settle the estate, and clearer records mean a faster and cheaper process.
The will’s core job is matching assets to beneficiaries. Identify each beneficiary by full legal name and relationship to you, and describe the property clearly enough that no one has to guess. Vague language like “my jewelry goes to my daughters” invites disputes. Name an alternate beneficiary for each gift in case your first choice dies before you do.
Virginia has adopted laws giving fiduciaries authority over a deceased person’s digital accounts, but your estate documents should spell out which accounts matter, where credentials are stored, and what you want done with them. A written list kept with the will, or in a secure digital vault your executor can reach, beats forcing them to hunt through your devices.
Choosing an Executor
Virginia law calls your executor a personal representative. This person locates your assets, pays debts and taxes, and distributes what remains. Before doing any of that, the executor must qualify by taking an oath and posting bond with the circuit court where the will is admitted.4Virginia Code Commission. Virginia Code Title 64.2 Chapter 5, Article 3 – Authority and General Duties Pick someone organized, trustworthy, and comfortable with paperwork, financial institutions, and deadlines. They will also file your final federal income tax return, and possibly one for the prior year if you died before it was filed. Name an alternate.
Guardian for Minor Children
If your children are under 18, the will is the place to nominate someone to raise them if both parents die. Without a nomination, a court chooses based on its own assessment of the child’s best interests, and the result may not be who you would have picked. Talk to the proposed guardian first to confirm they are willing.
What Your Will Cannot Do
Several types of property transfer outside the will, regardless of what the document says:
- Life insurance, 401(k) accounts, IRAs, annuities, and payable-on-death or transfer-on-death accounts go to whoever is named on the account paperwork.
- Real estate and financial accounts held as joint tenants with right of survivorship pass automatically to the surviving owner.
- Property in a trust is distributed by the trustee under the trust’s terms.
An outdated beneficiary designation can override a carefully drafted will. If an ex-spouse is still named on a life insurance policy from years ago, that ex-spouse collects the proceeds. Review these designations whenever your circumstances change.
Virginia law also protects a surviving spouse from being cut out. A surviving spouse may claim an elective share equal to 50 percent of the marital-property portion of the augmented estate. The marital-property percentage scales with the length of the marriage, starting at 3 percent for marriages under a year and reaching 100 percent at 15 or more years.5Virginia Code Commission. Virginia Code Title 64.2 Chapter 3, Article 1.1 – Elective Share of Surviving Spouse In a long marriage, a spouse can effectively claim about half of everything no matter what the will says. The reliable way to limit this right is a valid prenuptial or postnuptial agreement.
Signing the Will
The signing is what turns a draft into an enforceable document. Gather both witnesses and, ideally, a notary in the same room. Sign the will in the witnesses’ presence, or acknowledge to them that the signature already on the page is yours.1Virginia Code Commission. Virginia Code 64.2-403 – Execution of Wills; Requirements Both witnesses then sign in your presence. If a notary is there, complete the self-proving affidavit at the same time.3Virginia Code Commission. Virginia Code 64.2-452 – How Will May Be Made Self-Proved; Affidavits of Witnesses
Do not cut corners. A will signed without two witnesses, or with witnesses who were not in the room at the same time, can be declared invalid. The whole ceremony takes about 15 minutes.
Storing the Will
A perfectly drafted will is useless if no one can find it. Keep the original somewhere secure and tell your executor exactly where. A fireproof home safe or a safe deposit box both work, though a safe deposit box can slow things down if your executor has trouble getting access after your death.
Virginia offers another option. You or your attorney can lodge the will for safekeeping with the clerk of the circuit court in the jurisdiction where you live.6Virginia Code Commission. Virginia Code 64.2-409 – Wills of Living Persons Lodged for Safekeeping With Clerks of Certain Courts The clerk holds the sealed document until it is needed, which means the court already has it when probate begins.
Changing or Revoking the Will Later
Marriage, divorce, a new child, the death of a beneficiary, or a significant change in finances are all reasons to revisit the document. You have two basic options.
A codicil is a separate document that amends your existing will without replacing it. It must meet the same signing and witnessing requirements as the will itself. Codicils are fine for small changes like swapping an executor or adjusting one gift. For anything larger, a new will is cleaner and less likely to create confusion.
To revoke a will entirely, execute a new will that expressly revokes all prior wills, or physically destroy the document with the intent to revoke it. If someone else destroys the will for you, they must do so in your presence and at your direction. Simply tearing up a copy while the original sits in a safe deposit box accomplishes nothing. The safest approach is to include a revocation clause in the new will and then destroy every copy of the old one.