How to Make a Will in Virginia: Signing, Affidavit, and Changes

To make a will in Virginia, you need to be at least 18 and of sound mind, put your wishes in writing, sign the document, and have two competent witnesses sign it in your presence. Those four requirements come from Virginia Code § 64.2-403, and missing any one of them can void the whole thing.¹ The process is straightforward enough to handle without a lawyer. The details are where people get in trouble.

Who Can Make One

Virginia asks two things of the person making the will (the “testator”). You must be 18 or a legally emancipated minor, and you must be of sound mind.²

“Sound mind” doesn’t mean perfect mental health. It means that at the moment you sign, you understand what property you own, who your family members and intended beneficiaries are, and what it means to distribute property through a will. Temporary confusion or even a diagnosed condition like early-stage dementia won’t automatically disqualify you. But capacity at signing is the most common ground on which disappointed relatives challenge a will after death. If there’s any realistic doubt, a dated note from a doctor near the signing is cheap insurance.

What to Put in the Document

Start with an inventory of what you actually own and which of those assets will pass through the will. Not everything does (see the next section). What typically goes in: real estate without a transfer-on-death deed, bank accounts without a payable-on-death designation, vehicles, personal property like furniture and jewelry, and business interests.

Then name your beneficiaries clearly. Use full legal names. “My nephew John” is fine if you have one nephew named John and a problem if you have three. For each significant gift, decide what happens if that beneficiary dies before you. You can name an alternate for each gift, or add a general clause directing where any lapsed gift goes.

Your Personal Representative

Name a personal representative (Virginia’s term for executor) to gather your assets, pay debts and taxes, and distribute what remains. Pick someone organized, trustworthy, and willing. Always name at least one alternate. If no one you’ve named can serve, the court appoints an administrator from among your beneficiaries or heirs.³

An out-of-state representative can serve, but may need to post a surety bond and appoint a Virginia resident as agent for legal documents. If you’re naming someone far away, consider pairing them with a local co-representative, or waiving the bond requirement in the will itself.

Guardian for Minor Children

If you have children under 18, your will is where you name a guardian. Each parent can appoint a guardian of the person (who raises the child) and a separate guardian of the estate (who manages any property the child inherits).⁴ Whoever you appoint must appear in the court where the will is probated within six months and accept the role, so talk with them first. If both parents die and no guardian has been named, the court picks one. That alone is reason to have a will.

Assets Your Will Won’t Control

Certain assets never pass through a will no matter what the will says. They transfer directly to a named beneficiary or surviving co-owner at death, and a contradictory will instruction will not override them:

Life insurance policies and retirement accounts (IRAs, 401(k)s) go to whoever is listed on the beneficiary form.
Jointly owned property with right of survivorship passes automatically to the surviving owner.
Bank and brokerage accounts with payable-on-death or transfer-on-death designations go to the named beneficiary.
Real estate covered by a transfer-on-death deed passes to the named beneficiary.⁵
Anything you transferred into a revocable living trust during your lifetime passes under the trust’s terms.

So review your beneficiary designations alongside your will. If your will leaves your retirement account to your son but the account’s beneficiary form still lists your ex-spouse, the financial institution follows the form. Keeping those forms current matters as much as keeping the will current.

Signing the Will the Right Way

Drafting the document is only half the job, and this is where most do-it-yourself wills fail. Virginia’s execution rules are strict, and a properly written will that is improperly signed is just paper.

The will must be in writing and signed by you in a way that makes clear you intend the mark as your signature. If you physically cannot sign, another person can sign for you, but only in your presence and at your direction. You then need at least two competent witnesses, both present at the same time. You either sign in front of them or acknowledge your existing signature to them. Both witnesses then sign the will in your presence.¹ No specific attestation language is required, but having each witness write the date next to their signature is good practice.

Virginia does not disqualify a witness simply because they’re named as a beneficiary.⁶ Even so, use “disinterested” witnesses who don’t stand to inherit anything. Interested witnesses hand future challengers an undue influence argument, even one with no merit. A neighbor, a coworker, or any adult with no stake in the will is a better choice.

Add a Self-Proving Affidavit

A self-proving affidavit is the single most useful addition to a Virginia will, and most people drafting their own skip it. It’s a sworn statement, signed by you and your witnesses before a notary, confirming that all execution requirements were followed.⁷

Without one, the probate court has to track down your witnesses after your death and take their testimony before admitting the will. If a witness has moved, died, or can’t be located, the delay and expense fall on your family. With a self-proving affidavit, the court accepts the affidavit as if the witnesses testified in person.⁷ You can add the affidavit at signing or later. Doing it while everyone is already in the room is easier.

The Handwritten Alternative

Virginia recognizes holographic wills, which are written entirely in the testator’s own handwriting. A holographic will needs no witnesses at signing. After your death, though, at least two disinterested witnesses must appear and testify that the handwriting and signature are genuinely yours.¹

They sound convenient. They aren’t. Without witnesses at signing, they’re easier to attack on forgery, capacity, or undue influence grounds, and they can’t be made self-proving, so the probate court will always need live testimony. As an emergency placeholder, a holographic will beats nothing. For anyone with time to plan, a typed and witnessed will is the right call.

What a Will Can’t Do to a Spouse

Even a perfectly executed will cannot completely disinherit a surviving spouse in Virginia. State law gives the surviving spouse the right to claim an “elective share” of the deceased spouse’s augmented estate, no matter what the will says.⁸ The augmented estate includes certain nonprobate transfers too, so you can’t easily route around the right through beneficiary designations.

The surviving spouse has six months from the will’s admission to probate to file the elective share claim.⁸ If you’re married and planning to leave your spouse less than the elective share would give them, that plan is fragile. This is the piece where paying an estate planning attorney usually earns its fee, especially in blended families.

Where to Keep the Original

The original signed will needs to be somewhere your personal representative can actually find it. A fireproof home safe, a bank safe deposit box, and an attorney’s office are the common choices, each with tradeoffs. A home safe is accessible but vulnerable to fire or flood. A bank box is secure but can be hard to open quickly after death. An attorney’s office depends on the firm still existing.

Virginia offers a fourth option most people don’t know about. You can lodge your will for safekeeping with the clerk of the circuit court where you live, for a one-time $5 fee. The clerk seals it in an envelope, indexes it under your name, and preserves it unopened until your death, at which point it goes to the person entitled to file it for probate. You can retrieve it during your lifetime with a written request. This is only available in courts where the judge has entered an order authorizing it, so call your local clerk first.⁹ Whatever you do, tell your personal representative exactly where the original is.

Changing It Later

A will written at 35 probably won’t fit your life at 55. Marriage, a new child, buying significant property, or the death of a beneficiary or named representative all warrant a review.

For small changes you can execute a codicil, which is a written amendment that has to meet the same formalities as the will itself: written, signed, and witnessed by two competent people present at the same time. For anything beyond a minor tweak, a fresh will is cleaner. Include a clause expressly revoking all prior wills and codicils. Under Virginia law, a new will that expressly revokes a former one renders the old one void.¹⁰

You can also revoke a will by physically destroying it with the intent to revoke. Tearing, burning, or obliterating the document all work, but accidental destruction doesn’t count, and if someone else destroys it at your direction they must do so in your presence.¹⁰ Shredding a photocopy while the signed original sits in a safe deposit box accomplishes nothing. Destroy the real one.

One more trap worth knowing. If you divorce after making a will, Virginia automatically strips out gifts and appointments to your former spouse, treating them as if they died before you.¹¹ That’s a safety net, not a plan. It doesn’t rewrite the rest of the will, and it doesn’t touch beneficiary designations on life insurance or retirement accounts. After a divorce, write a new will and update those forms separately.

1
Virginia Code Commission. Virginia Code 64.2-403 – Execution of Wills Requirements
2
Virginia Code Commission. Virginia Code 64.2-401 – Who May Make a Will; What Estate May Be Disposed Of
3
Virginia Code Commission. Virginia Code 64.2-500 – Grant of Administration With the Will Annexed
4
Virginia Code Commission. Virginia Code 64.2-1701 – Testamentary Guardians
5
Virginia Code Commission. Virginia Code 64.2-624 – Transfer on Death Deed Authorized
6
Virginia Code Commission. Virginia Code 64.2-405 – Interested Persons as Competent Witnesses
7
Virginia Code Commission. Virginia Code 64.2-452 – How Will May Be Made Self-Proved; Affidavits of Witnesses
8
Virginia Code Commission. Virginia Code 64.2-302 – When and How Elective Share May Be Claimed by Surviving Spouse
9
Virginia Code Commission. Virginia Code 64.2-409 – Wills of Living Persons Lodged for Safekeeping With Clerks of Certain Courts
10
Virginia Code Commission. Virginia Code 64.2-410 – Revocation of Wills Generally
11
Virginia Code Commission. Virginia Code 64.2-412 – Revocation by Divorce or Annulment; Revival Upon Remarriage; No Revocation by Other Change