Wills play an integral part to a Virginia resident's estate plan. They allow a testator, the person making the will, to direct how his property is divided at death, to appoint who serves as an executor to accomplish these instructions, to nominate a guardian for minor children and to establish a testamentary trust to direct how assets are to be used toward ongoing support of a beneficiary. By following the state laws on a last will and testament, a Virginia resident can take advantage of these opportunities and avoid dying intestate.
Requirements for All Wills
Virginia has established certain rules that apply to all wills in addition to laws that are specific to the type of will that is executed.
Under Section 64.2-401 of the Virginia code, any person of sound mind can make a will. This definition includes emancipated minors.
According to Section 64.2-403 of the Virginia Code, the will must be in writing. It must be signed by the testator, or the testator must direct someone else to sign his name to manifest his intention that the signature be his own. Virginia law does not recognize or accept noncupative, or oral, wills.
If the testator writes the will completely in his own handwriting, the will is considered valid without the need for witnesses to sign the will, according to Section 64.2-203(B) of the Virginia Code. However, two disinterested witnesses must prove that the signature is the testator's.
Unless the will is entirely in the testator's handwriting, the will must be witnessed. (See writing link). The testator must sign his will in the presence of two witnesses. Unlike the rules in some other states, Virginia law does permit interested witnesses - individuals who stand to inherit from the will - to witness the will. Witnesses may be called to court to testify about the execution of the will.
Although this is the legal requirement, Section 64.2-404 of the Virginia Code will allow a will to remain valid even if this requirement is not met if the person presenting the will shows by clear and convincing evidence that the decedent intended the document to be his will. However, in any event, the will must be signed by the person making the will.
Virginia law does not require a will to be notarized. However, if the will is notarized and accompanied by a self-proving affidavit, it is presumed to be properly executed. Furthermore, it is accepted by probate court and does not require live testimony from the witnesses.