Have you heard that it’s a good idea to make a will, but you still need to take the time to create one? If you answer “yes,” you are not alone. According to a 2022 survey from Caring.com, only 33.1% of American adults have a will. For those without a will, 40% blame procrastination as their reason for sitting on their hands.
However, if you’ve been doing online searches for “wills lawyers near me,” we commend you for taking charge of your affairs. Continue reading as a will lawyer from our McCarthy & Aker team discusses what you need to know about how to make a will in Virginia.
If you have any questions, need help creating your will, or need a review of an existing estate plan, call (540) 722-2181 to schedule your consultation. Let us go to work for you!
Who Needs a Will in Virginia?
Contrary to popular belief, estate planning and wills aren't just for the very wealthy or elderly. The truth is you should have a will if you:
- Are over 18 and of sound mind
- Own a home or any other property
- Have a career, savings, investments, children, or other dependents
Without proper estate planning, you're essentially handing over the responsibility of deciding what happens to your interests after you pass away to the courts. So, if any of the above categories apply to you, regardless of your age or state in life, it's time to make a will.
How Is a Will Defined in Virginia
A will is a legal document that describes how a person wishes their personal property to be divided after death. The person who writes the will is called a testator. In Virginia, a testator must be 18 or older and of sound mind to write a will.
The testator and two independent and competent witnesses must sign the will. For people who are physically incapable of signing, Virginia law allows for the will to be signed by someone else in the testator's presence and at the testator's direction. However, the person signing on the testator's behalf must be someone other than one of the witnesses to the will.
Although the law does not require a will to be notarized, most will lawyers recommend it.
What Is a Holographic Will?
Holographic wills are allowed in Virginia. A holographic will must be entirely written and signed in the testator's handwriting. In addition, they must be signed by the testator and include depositions of two disinterested parties who can identify the deceased’s handwriting.
What to Include in Your Will
Occasionally, you hear of a celebrity who has passed away without a will, inadvertently creating a legal nightmare for their loved ones. Don’t be that person. In short, even a simple handwritten will is better than nothing.
We recommend that your will includes the property you want to bequeath to your beneficiaries, including your family, friends, favorite charities, and pets. Your will should also include the following:
- The name of the person you selected to carry out your wishes (executor). You can name anyone you trust as your executor if they are willing and able to serve.
Before distributing your property to your heirs, the executor will settle your taxes and final bills by using money from your estate and represent your estate in the probate process. You can read more about an executor's responsibilities in an article we wrote here
- The name of a guardian or guardians for your minor children.
- The name of a person who will assume ownership of your pets.
A will lawyer is an excellent resource for drafting a will that reflects your desires and serves the people (and pets) you love. It is also wise to review your will periodically to update it with significant life changes and have your attorney revise it as needed.
Can My Will be Contested?
Your heirs might contest your will if they think it is unfair or if the estate is sizable. You should consult an estate planning attorney to ensure your will stands up in court. You should also speak with an estate planning attorney if you are pressured or threatened into signing a will against your wishes.
Storing the Will
Once the will has been signed and attested, you should store it in a safe place, such as a safety deposit box or a fireproof safe. Remember to let your executor know where the will is located. If you decide to have your attorney draft your will, they can store your will for you until it is needed.
What If I Don’t Get Around to Creating a Will?
The probate court manages your estate if you die without a will (dying intestate). According to preset rules, the court determines your closest relatives and divides the assets accordingly. If you have no living relatives, your entire estate will either become the property of the Commonwealth of Virginia or be seized by your creditors.
Don’t let your hard-earned assets fall into the hands of the state. Contact a will lawyer for help creating your will.
Beyond the Will
Wills are the best-known tool in estate planning. However, most people have a more complex situation and will need other legal instruments.
For instance, if you care for a child or adult with special needs, you will want to set up a special needs trust to ensure they are financially and medically supported after your death. If you are a business owner, you’ll use a different trust to pass on your firm to your designated heir.
Many more kinds of trusts are available to you, so it is wise to consult with an estate planning attorney to discuss your specific circumstances.
Remember, wills are subject to probate. Since courts administer the probate process, wills are public documents. Probate takes several months to a year to complete, and the court extracts a fee from the estate before beneficiaries receive their inheritance.
Trusts, on the other hand, do not go through probate. As private documents, trusts avoid public scrutiny, time delays, and court fees altogether.
Additional Basic Documents to Include in Your Estate Plan
In addition to your will and any trusts you set up, we recommend including the following two documents to round out your basic estate plan:
- Power of Attorney: appoints individuals who will make financial decisions during times of absence or incapacitation
- Health Care Directive: states your wishes regarding your healthcare in the event you are rendered unconscious or otherwise unable to communicate your wishes to family and medical providers
At this point, you may think, “I need the help of an estate planning attorney.” There’s no need to waste time searching online. McCarthy & Akers is here for you. We make choosing a legal partner easy. We’ll take the time to get to know you, understand your legal needs, and craft a solution that works best for you.
Can I Make a DIY Online Will, or Do I Need a Will Lawyer?
It is possible to create a do-it-yourself (DIY) online will, but we don’t advise it. A will is a legally binding document that can be rendered invalid by errors or omissions. It is best to consult with an experienced will lawyer to ensure that your final wishes are properly recorded and carried out.
Ready to Make Your Will? Contact McCarthy & Akers, PLC
Our team of experienced estate planning attorneys is committed to helping you draft a will that is easy to understand and follows the laws of Virginia. We have helped many clients with their wills and other estate-planning documents.
Making a will in Virginia can be a complicated process, but understanding the necessary requirements and drafting and finalizing the document can help ensure that your wishes are carried out after your death. By understanding the process, you can ensure your final wishes are respected and that your estate is handled properly.
Let us go to work for you! Contact our Virginia estate planning attorney team from one of our offices in Strasburg, Front Royal, Winchester, and Manassas at (540) 722-2181. You can fill out our online form to schedule your consultation if more convenient.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction. No information in this post should be construed as legal advice from the individual author or the law firm, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting based on any information included in or accessible through this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country, or other appropriate licensing jurisdiction.
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Winchester, VA 22601