Strictly speaking, a notary is not required for a will to be valid in Virginia. This isn’t to say that having a notary can’t be helpful. A will can be made self-proving through the work of a Virginia notary public, which eliminates the need for witnesses to validate the will during probate.
A simple will in Virginia requires a writing signed by the person making the will and at least two competent witnesses. Under Virginia law, there is no formal requirement for the part of the will the witnesses sign, but they must sign the will in the presence of the person making the will and must have witnessed her signature. According to the Virginia State Bar, no notarization is needed for any of these signatures.
Though Virginia does not recognize oral wills, it does recognize unwitnessed wills if they are wholly in the handwriting of the person making the will. So-called holographic wills do not need to bear the signature of any witnesses at all, but at least two persons who are not beneficiaries under the will must verify the handwriting in the probate court.
The value a notary can provide in the will-making process is to make it unnecessary for witnesses to provide testimony validating the will during probate. Any time subsequent to the execution of the will, the two witnesses and the person making the will can execute affidavits attesting the validity of the will before a notary public. The form of the attestation is contained in the Code of Virginia.
Capacity and Competent Witnesses
The presence of a notary does not cure defects in the capacity of the person making the will or the competency of the witnesses. To have will-making capacity under Virginia law, you must be at least 18 years old and of sound mind. Witnesses must meet the same criteria. The fact that a witness is also a beneficiary to the will does not invalidate the will or eliminate their competency to act as a witness.
Joseph Nicholson is an independent analyst whose publishing achievements include a cover feature for "Futures Magazine" and a recurring column in the monthly newsletter of a private mint. He received a Bachelor of Arts in English from the University of Florida and is currently attending law school in San Francisco.