Elder Law

Requirements of Making a Will in Virginia

The requirements for an individual to make a Will in Virginia are very straight-forward: you must be 18 years of age and of sound mind.  The age requirement is self-explanatory. But what does “of sound mind” mean?  This refers to one’s mental competence at the time the Will is signed. Having mental competence is an essential factor in ensuring your Will is legally binding. Being mentally competent means that you know you are signing a legally binding document and you are familiar with your property as well as your family members who traditionally are the “natural objects of your bounty”.

There are also signing requirements in Virginia: the Will must be signed in the presence of two disinterested witnesses (both of whom must be age 18 or older and mentally competent) and a notary public. All of these individuals will sign the document while present together in the same location. The role of the witness is very important to the validity of the Will, as the witnesses, in witnessing the signing of the document, are affirming that you were mentally competent and under no duress at the time you executed the Will. If the Will is later challenged, witnesses will be expected to testify in court regarding the validity of the Will.

In order to make a Will complete, an individual will need to designate beneficiaries of his properties (personal, real, tangible and intangible). In general, any person can be designated as a beneficiary, and properties can be designated for distribution in any fashion. There is no legal obligation in Virginia to leave property to any one person, but there are protections available to the surviving spouse to elect to take a portion of the estate if the deceased spouse did not provide for the surviving spouse in his Will. Additionally, there must be a person designated to be in charge of distributing the properties (the “Executor”), and if there are minor children, the nomination of a guardian for those minor children should also be designated.

Most Wills are documented with the typed, written word; oral Wills are not prohibited in Virginia but are widely discouraged. Holographic Wills (handwritten, un-witnessed wills), while also acceptable in Virginia, are widely discouraged. Both Oral Wills and Holographic Wills are subject to a much higher evidentiary standard before they are accepted for probate as legal documents.

In sum, there are numerous requirements to be met in Virginia for making a valid Will; if these requirements are not met, the Will is deemed invalid at death which would create an unexpected distribution of the estate.  Poole Brooke Plumlee PC has several attorneys specializing in estate planning who can customize an appropriate estate plan for every individual.


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