What Are the Reasons for Revocation of Will in Virginia?

Have you recently experienced a significant life change, such as a divorce, the birth of a child, or the acquisition of a substantial asset? You might suddenly realize that your current Will, drafted years ago, no longer reflects your new circumstances and wishes.

Is your Will still valid? Should you create a new one or simply update the existing one? What are the consequences of not updating your Will? Many people face these questions when their life situations change, and they’re unsure about the next steps. That’s where understanding Will revocation comes into play. In Virginia, revoking a Will means canceling or invalidating it. You might choose to revoke your Will for various reasons, from major life changes to a desire to update your estate plan.

This blog post explores the most common reason for the revocation of Will in Virginia and discusses when creating a new Will might be necessary. By the end, you’ll have a clearer understanding of how to keep your estate plan current and ensure your final wishes are honored.

Why Revoke Your Will?

As life evolves and your circumstances change, you should update your Will to reflect your current situation. Here are some common reasons you may need to revoke your Will in Virginia:

Changes in Marital Status

In Virginia, getting married does not automatically update your existing Will to include your new spouse. Even though Virginia is an elective share state, your spouse can only claim a portion of your estate if you pass away without revoking your old Will and creating a new one that includes your new spouse. Therefore, it’s crucial to review and revoke your Will after marriage to ensure your spouse is provided for as you intend. Failing to do so may result in your spouse inheriting less than you wish or having to claim their elective share.

If you go through a divorce or an annulment, it’s important to know that according to Virginia law, the divorce or annulment automatically revokes any disposition or appointment of property made by the Will to your former spouse. However, it’s vital to review your entire estate plan, after a divorce, rather than relying solely on this automatic revocation.

Death of a Beneficiary or Personal Representative

If someone named in your Will as a beneficiary or personal representative passes away, you might consider revoking your existing Will and creating a new one to name replacements. While a codicil (an amendment) can be used for this purpose, a new Will ensures clarity.

Life Changes and Relocation

Major life events like having children, acquiring significant assets, or moving to a new state can necessitate a new Will.  In some cases, estate planning laws differ by state, making a new Will crucial when relocating.

Operation of Law

In the context of Wills, “operation of law” means that certain events can invalidate a Will or parts of it automatically as dictated by law even if you haven’t taken explicit action to revoke it yourself. In addition to divorce, this can happen in scenarios such as:

• Fraudulent or Forged Will: If it’s discovered that your Will was created under fraudulent circumstances or was forged, a court may declare the Will invalid and revoke it in its entirety.
• Mental Incapacity: If it’s determined that you lacked the mental capacity to understand the nature and consequences of creating a Will at the time it was executed, a court may revoke the Will.

Other events can also invalidate a Virginia Will by operation of law.  If you have any questions about whether your Will is valid, it’s always best to consult with an attorney.

Consequences of Not Revoking an Outdated Will

Failing to revoke an outdated Will can lead to unintended consequences and potential challenges in the administration of your estate. Some of the risks associated with not revoking a Will when necessary include:

• Assets being distributed in a manner that no longer aligns with your current wishes
• Beneficiaries receiving assets that you intended for someone else
• Confusion and potential disputes among family members and beneficiaries
• Increased likelihood of your Will being contested in court
• Your most recent intentions not being honored

To avoid these consequences, it’s crucial to review your Will periodically and revoke it when necessary and create a new one to ensure that it accurately reflects your current circumstances and desires.

How to Properly Revoke a Will in Virginia

In Virginia, there are specific rules that must be followed if you want to revoke your Will. These rules are written in the Virginia Code Section 64.2-410. If you want to completely revoke your Will, you can do it in two ways:

1. You can physically destroy your Will by cutting, tearing, burning, or destroying the document or your signature on it. You must do this yourself or have someone else do it in front of you and under your instructions. This action must be done with the clear intention of revoking your Will. Once this is done, your Will is no longer valid.
2. You can create a new Will that clearly states that you want to revoke your previous Will. The new Will must be created following Virginia’s legal requirements for making a valid Will. Once the new Will is properly made, your old Will is no longer valid.

You can also revoke just a part of your Will, rather than the whole thing. To do this, you need to create a new Will that either:

• Clearly states which part of your old Will you want to revoke, or
• Has instructions that are different from your old Will.

When you do this, only the part of your old Will that you specifically revoked or the parts that are different from your new Will are no longer valid. The rest of your old Will still applies. For this partial revocation to work, your new Will must be properly created and become effective when you pass away.

It’s important to follow these rules carefully when revoking a Will to make sure that your wishes are clearly understood and that your final instructions are followed. Working with experienced estate planning attorneys can ensure this is done correctly and according to Virginia law.

Protect Your Legacy with the Help of Experienced Wills Attorneys

Revoking a Will is a significant decision that requires careful consideration and legal experience. Whether you’re facing major life changes or simply need to update your estate plan, it’s essential to work with a knowledgeable attorney who can guide you through the process and ensure that your wishes are properly documented.

At McCarthy & Akers, our dedicated team of Wills attorneys in Virginia understands the complexities of estate planning and Will revocation. We’re here to help you navigate this important process and make informed decisions about your legacy.

Don’t leave your legacy to chance. If you’re considering revoking your Will or have questions about the process, now is the time to seek professional guidance. Instead of wasting valuable time searching online for experienced “Will attorneys in my area,” contact us instead to help you protect your assets, provide for your loved ones, and ensure that your final wishes are honored.

Reach out to us by calling (540) 722-2181 or online to schedule a consultation. With offices in Strasburg, Woodstock, Front Royal, Winchester, Manassas, and Warrenton, we’re conveniently located to serve you. At McCarthy & Akers, we help you plan for your future.

Copyright © 2024. McCarthy & Akers, PLC | Estate Planning Attorneys. All rights reserved.

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.

McCarthy & Akers, PLC | Estate Planning Attorneys
302 W Boscawen St.
Winchester, VA 22601
(540) 722-2181
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