WILLS 101

Welcome to Wills 101, designed to help answer common questions you may have about wills and the probate process.


 

What is a will?

 

A Last Will and Testament is a relatively simple document that can have significant legal importance to a person's property after death.  If a person dies without a will they are said to have died “intestate” and the state's laws will determine how and to whom the person’s assets will be distributed.


 

What is Probate?

 

The word probate refers to the process of proving before a court that a document offered as the last will and testament of a deceased person is genuine. All wills need to be probated in the city or county where the decedent resided at time of death. This can be a lengthy and expensive task. 

 

More specifically, you should arrange to meet with the deputy clerk who handles Virginia probate matters in the Clerk's Office of the Circuit Court.

 

Procedures are substantially uniform in the various Virginia Circuit Courts. You should first contact the probate clerk in the court where you wish to probate the will to determine if they require an appointment.

 

The clerk will require you to provide the original will for probate. You will also be required to provide evidence of the decedent's death - a death certificate, or the clerk may accept a copy of an obituary printed in a newspaper if you have not yet received the death certificate.

 

If the will is not "self proving," as discussed in first section of this Chapter, you must arrange for at least one of the attesting witness to be present to prove the will.

 

If the will is wholly in the handwriting of the decedent (a holographic will) you must arrange for two disinterested witnesses to be present to prove the handwriting of the testator.

 

At the time of probate you will be asked to estimate the value (market value at time of death) of the estate assets, including real and personal property, located in Virginia when the decedent died. For estates over $15,000, a probate tax will be collected by the Clerk based on a rate of 10 cents for every $100 of value or fraction thereof.

 

There will also be recording costs and Clerk's fees payable when the will is probated. It is suggested that you ask the Clerk about these fees when you call to determine if an appointment is necessary. require If a will’s authenticity is unchallenged, it may be probated in a simplified procedure if it has been self-proven.  Witnesses to a self-proven will are not required to testify in court because the court automatically accepts a self-proven will as authentic.  To self-prove a will the testator and the witnesses must swear in an affidavit before a notary, or other authorized officer while outside of the United States, to the authenticity of the will. The affidavit should be part of the will or attached to it.  


 

Why do I need a will?

 

If a person dies without a will, the beneficiaries can not dispute the court’s distribution of that person’s estate under the intestacy laws. Even if that person expressed different wishes verbally during their lifetime, the statutes control the distribution.  With a valid will, a person can legally determine how their property will be distributed... and to whom.


 

Intestate Succession

 

  • Surviving spouse
  • Children
  • Parents
  • Siblings 

The remainder of the intestate succession can be found here.


 

Requirements for a valid will

 

A will must meet the legal requirements set forth by the state in order for it to be valid.  Most states will also accept a will that was executed in another state if the document is a valid will under that state’s law.  The general requirements for a valid will are usually as follows:  (1) 18 years of age and of sound mind, (2) the document must be written (meaning typed), (3) signed by the person making the will (usually called the “testator” or “testatrix”), and (4) signed by two witnesses who were present to witness the execution of the document by the maker and who also witnessed each other sign the document. Most states allow for "holographic" wills, which are generally handwritten in it's entirety, signed and typically dated by the testator and is just as legally binding as the previous example. Virginia requires attestation of the signature by two witnesses. 

 

Generally, it is recommended that the witnesses to the will be “disinterested”, which means that they are not a beneficiary of the will.  DC Code § 18–104(b) for example limits the interested person's share of the estate to what he or she may claim under intestacy distribution. Virginia doesn't have this same restriction, and both DC and Virginia law claim that no person shall be incompetent to testify for or against the will solely by reason of any interest in the will or the estate of the testator. 


 

How to revoke or cancel a will

 

The revocation of wills are quite simple in most states. If the testator does any act of physical destruction (tearing, burning, etc.) or cancels through part or all of the will, with the intent to revoke, the will or those parts of it, are void. Also, any subsequently valid wills that either expressly revoke a former will or is inconsistent with its terms, the former will or its inconsistencies will be revoked and superseded by the new will. It should also be noted that in both Virginia and DC, a divorce, by implication of law will revoke any devises made to the former spouse unless otherwise stated.