[kc_heading_pac_7_pre_headline_2 size=”24″ color=”#fff” ]Fairfax County Estate Planning Lawyer on the basics of wills in Virginia[/kc_heading_pac_7_pre_headline_2]
In the most basic sense, a will is a writing signed by someone referred to as the “testator.” The purpose behind the creation of a will is to distribute property after death. Without a will, undesirable outcomes may exist.
Common “Wills in Virginia” Questions:
Below, the above questions on the basics of wills in Virginia are addressed. There are also some foundational terms to understand that people generally do not use in everyday conversation (unless they are a Fairfax County estate planning lawyer). Keep in mind, this is not legal advice…but it may be very valuable knowledge to you or a loved one. Even young individuals and families should consider the importance of a proper estate plan. A will may or may not be the best choice, depending on circumstances, assets owned, and personal goals. Wills in Virginia may be – and often are — used in conjunction with other estate planning tools (like trusts). This page is dedicated to Virginia wills information and basic answers to commonly asked questions: for information related to other estate planning tools, please visit our main estate planning page (or select the appropriate drop-down menu under the Estate Planning menu from the home page for the topic you seek to learn more about). Join our estate planning newsletter, specifically covering Virginia wills, trusts and other estate planning subjects to get the latest updates delivered to your inbox once a week (sometimes less frequently).
A few introductory Terms
“Testator” – the person who makes the will
“Bequest” – the generic term to describe a testamentary gift of property
“Devise” – the term used to describe a gift of real property (such as real-estate) under a will
“Legacy” – the term used to describe a gift of personal property under a will
“General Legacy” – the term used to describe a gift of cash
“Codicil” – the term used to refer to a change or supplement to a will
“Decedent” – person passing away
“Who decides how property is distributed if someone dies without a will in Virginia?”
If no Virginia will exists (or if the will is invalid, and if no other legal instrument to distribute assets), then laws of “intestacy” apply. The Commonwealth has a statute to determine who takes what if wills in Virginia do not exist (or some other estate planning tool to avoid probate)…and the law determines in what order in such a case. The law may or may not reflect a decedent’s wishes, which is why it is important to understand what could be at risk if proper planning is ignored.
For a married person, the estate passes entirely to a current spouse who is still alive (surviving spouse). If a married person passes and has children from another marriage, the results are different. In such a case, the surviving children of the deceased (or their descendants) would receive a 2/3rds portion. The surviving spouse of the deceased would only take 1/3rd.
The Virginia statute is provided below, with bold words and highlighting for emphasis for easier readability. If the law is difficult to follow, a basic summary has been provided below the statute, but do not rely on the summary as legal advice.
§ 64.2-200. Course of descents generally; right of Commonwealth if no other heir.
A. The real estate of any decedent not effectively disposed of by will descends and passes by intestate succession in the following course:
1. To the surviving spouse of the decedent, unless the decedent is survived by children or their descendants, one or more of whom are not children or their descendants of the surviving spouse, in which case, two-thirds of the estate descends and passes to the decedent’s children and their descendants, and one-third of the estate descends and passes to the surviving spouse.
2. If there is no surviving spouse, then the estate descends and passes to the decedent’s children and their descendants.
3. If there is none of the foregoing, then to the decedent’s parents, or to the surviving parent.
4. If there is none of the foregoing, then to the decedent’s brothers and sisters, and their descendants.
5. If there is none of the foregoing, then one-half of the estate descends and passes to the paternal kindred and one-half descends and passes to the maternal kindred of the decedent in the following course:
a. To the decedent’s grandparents, or to the surviving grandparent.
b. If there is none of the foregoing, then to the decedent’s uncles and aunts, and their descendants.
c. If there is none of the foregoing, then to the decedent’s great-grandparents.
d. If there is none of the foregoing, then to the brothers and sisters of the decedent’s grandparents, and their descendants.
e. And so on, in other cases, without end, passing to the nearest lineal ancestors, and the descendants of such ancestors.
B. If there are either no surviving paternal kindred or no surviving maternal kindred, the whole estate descends and passes to the paternal or maternal kindred who survive the decedent. If there are neither maternal nor paternal kindred, the whole estate descends and passes to the kindred of the decedent’s most recent spouse, if any, provided that the decedent and the spouse were married at the time of the spouse’s death, as if such spouse had died intestate and entitled to the estate.
C. If there is no other heir of a decedent’s real estate, such real estate is subject to escheat to the Commonwealth in accordance with Chapter 10 (§ 55-168 et seq.) of Title 55.
Interesting note: this statute has been changed six times since its introduction in 1956. Revisions are as follows: in 1968, chapter 656; in 1977, chapter 474; in 1982, chapter 304; in 1985, chapter 189; in 1990, chapter 831; in 2012, chapter 614
A (somewhat) easier to follow version:
First, does the decedent have a surviving spouse?
If so, are they without descendants OR are the only descendants from the surviving spouse?
If so, the surviving spouse gets the entire estate.
If descendants exist not from the surviving spouse, then the surviving spouse only gets 1/3rd and the descendants get 2/3rds.
Second, if no surviving spouse exists, does the decedent have children, or grand-children from those children who are still living? If so, the first generation of living descendants split the estate. This is referred to as “per capita with representation” (aka “per stirpes”).
Example: this means that if a person dies with no surviving spouse but was a parent to two people (A and B), then the question is, is A or B alive? If A is alive and B is not alive, then the question then becomes, whether or not B has children of his or her own. If so, A would take half of the estate, and B’s children (then alive) would split the remaining half.
Third, look to the deceased’s person’s parents.
Fourth, look to siblings and their descendants.
Fifth, look to grandparents, then to uncles and aunts and their descendants, and then to great-grandparents, and finally to the siblings of the decedent’s grandparents and their decedents.
Sixth, look to the nearest lineal ancestors and the descendants of such ancestor(s).
Seventh, look to the spouses’ family in the same order as the steps above.
“What is probate court, and why do some people call it a ‘nightmare?’”
Probate is the public court process necessary to amend the title(s) to assets to the new living taker (or, beneficiary), from the name of the deceased.
Probate court is also where, among other things:
- creditors may attempt to collect debts (possibly reducing – or “abating”—the value of the estate);
- parties can file a complaint (also commonly known as a will contest: maybe a close relative of the deceased has evidence to suggest the testator was under duress, undue influence, or that the will was procured by fraud) regarding the will itself;
- Judges may look into issues related to the executor or administrator of the estate, named Guardians of minor children, and the oversight of any minor children’s finances (by a Trustee).
Who can make wills in Virginia?
No. Wills in Virginia can be created only if one possesses a certain level of mental competence and be at least 18 years of age. The testator must, at the time of making the will, possess the intent to make such a will. Additionally, the testator must have the capacity to understand the nature of his or her property, the dispositions he or she is making under the will, and the beneficiaries named in the will.
“What are the benefits of having a will?”
The benefits are too numerous to list, and often depend on circumstances. Here are a few possibilities:
- Wills in Virginia allow a testator to direct how property is divided, rather than reliance upon a statute.
- Wills in Virginia allow a testator to choose who will handle the distribution and probate of the estate.
- Wills in Virginia can save taxes.
- Wills in Virginia allow parents to nominate a person to care for any minor children should something happen to one or both parents (the Guardian). Otherwise, this critical decision may be a decision the courts make!
- Wills in Virginia can be used to arrange for a trust that may then be used to support children without expensive court proceedings.
“If a person creates a will, but later changes their mind about some aspect of it, may they change the will or some parts of it?”
Since a will does not actually go into effect until death, it is possible to change it while living. In days gone by, a legal instrument called a “codicil” was commonly used to make amendments to wills in Virginia. Since it is neither time-consuming nor expensive to print a will with minor changes, for most people wishing to amend a will it is wise to have their attorney make the changes, and then re-execute it properly, having them sign the will again along with other formalities.
“If property is owned jointly, is it an adequate substitute for wills in Virginia?”
While each person’s circumstances may dictate a different approach (when it comes to wills in Virginia and estate planning in general), joint ownership is not a substitute for a will: depending upon who the joint owners are, disputes among family members and unexpected tax consequences could potentially arise. For an answer to specific facts and details concerning your situation, please speak to a Fairfax County or Northern Virginia estate planning lawyer.
“If a living trust is used, are wills in Virginia still necessary?”
Usually, yes. Revocable Living Trusts (RLTs) have been gaining popularity, and for good reason. The assets distributed via trust are private transfers, unlike with wills in Virginia. Trusts are usually used in conjunction with wills in Virginia, so for most people, a will is still necessary. The reasons may differ, but the easiest example to explain and to understand is, when a trust is either not funded with all of one’s assets (or if the trust is not capable of being funded by a particular type of asset), then a will can be used to distribute those assets (or else the Virginia laws of intestacy could dictate their distribution. There are many types of trusts, and the right trust – or whether a trust is appropriate or not – should be discussed with a Virginia estate planning attorney (as should matters related to the creation of or amendment of a will).
For more information on wills in Virginia, you are invited and encouraged to bookmark this page and follow along with our video series posted below (much more coming soon!): as time goes on, more complex subjects will be addressed. Joining our free newsletter is another great way to ensure you and your family members take action, if you or your family has no estate plan in place.
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