Planning for the future can be overwhelming, especially when it involves your own mortality. Gallup’s latest poll shows that less than half of all Americans have made provisions for their estate through a will. However, having a legally sound will is one of the most important steps you can take to protect your assets and your family.
Without a will in place, the distribution of your estate will be subject to Virginia’s intestacy laws, leaving decisions about your property and loved ones up to the courts. Furthermore, without a will, the state may also have to decide who cares for your minor children if something happens to you. Don’t let this happen to you.
At Melone Hatley, P.C., our highly experienced Richmond, Virginia wills and trusts attorneys are here to guide you through the process of creating a will, ensuring your final wishes are legally documented and upheld.
Why Do You Need a Will?
A will is a legal instrument that provides clear instructions for how you want your assets to be distributed after your passing. Whether you own real estate, have retirement accounts, or want to leave a legacy for your loved ones and future generations, a properly drafted will ensures that the distribution of your assets is handled according to your wishes. Without a will, your assets could be divided in ways that don’t align with your wishes, leaving your family without the inheritance you would have wanted and potential legal complications at an already stressful time.
What Does a Will Accomplish?
A legally executed will provides clarity and assurance that your final wishes will be honored when you pass. The primary functions of a will include:
- Naming beneficiaries
Your will allows you to specify who inherits your property and in what amounts, ensuring your assets are distributed to individuals and organizations according to your wishes. - Appointing an executor
Your executor will be responsible for managing your estate, paying your outstanding debts, and distributing the remaining assets. Choosing someone you trust as your executor ensures your estate is handled according to your wishes. - Designating a guardian for your minor children
If you have young children, your will allows you to name a guardian to care for them in the event of your passing. - Minimizing family disputes
By clearly outlining your wishes, you can prevent misunderstandings or legal disputes among your family members. - Providing for charitable giving
If you choose to leave a portion of your estate to a charitable cause, your will ensures that your wishes are honored.
By creating a will, you have control over how your assets will be distributed, ensuring your loved ones receive the inheritance you intend for them. A will becomes even more critical when you have minor or special needs children. Through your will, naming a guardian or caregiver is especially important if you are a single parent. Without a will, the court decides who will assume the responsibility for their care.
What Can Happen If You Don’t Have a Will?
Failing to create a will could mean the state takes control over how your assets are distributed, leading to potential unintended consequences. If you die without a will, known as a dying intestate, Virginia’s intestacy laws will govern how your property is distributed among your surviving relatives.
The primary risks you face without a legally valid will include:
- State-controlled distribution of your assets
The court will allocate your assets according to state laws, which may not reflect your personal wishes. - Delays and unnecessary costs
The probate process can become more complicated, costly, and time-consuming than it already is. - Potential family disputes
Without the clear instructions of a will, disagreements can arise among family members, sometimes leading to legal disputes. - No guardian designation for your minor children
If you have minor children, the court may have to decide who becomes their guardian, which may not be in line with your preferences.
Without a will, intestate laws follow a very strict order. Virginia intestate succession laws will dictate who receives your estate and in what amounts after you pass away, often resulting in distributions you would not have intended.
If you die without a will in Virginia, your estate will be divided as follows:
- If you are married and have children, your spouse inherits everything unless you have children from a previous relationship. In that case, your spouse inherits one-third of your estate, and your children share the remaining two-thirds.
- If you are married and have no children, your spouse inherits everything.
- If you have children but no spouse, your children inherit everything in equal shares.
- If you have no spouse or children, your estate passes to your parents. If your parents are deceased, your estate goes to your siblings. If they are also deceased, other relatives are then considered.
- If there are no eligible relatives, your assets may ultimately pass to the state.
Unfortunately, without a will, you lose the ability to make these important decisions about your estate and who will inherit your assets, leaving these choices entirely to the courts.
Is Having a Will Enough?
While a will is an essential component of a comprehensive estate plan, it is only one piece and can’t accomplish everything you may need to address all your goals. Some limitations of a will include:
- Your will does not avoid probate
A will is still subject to probate, which is the court process of administering an estate. Probate can be a lengthy and costly process for your loved ones. - A will does not provide control over certain assets
Assets held in joint tenancy, such as your home, retirement accounts, and life insurance policies, are not governed by a will but typically pass to others through specific beneficiary designations. - A will does not provide immediate access to funds
Because a will must go through probate, your beneficiaries may experience delays getting access to assets until probate proceedings are completed. - Your will does not address what happens in the event of your incapacity
Because a will only takes effect upon death, there are no provisions for what happens to assets while you are alive, but you are unable to manage your assets or healthcare. - A will does not protect against estate and gift taxes
A will alone doesn’t offer strategies for minimizing estate or gift taxes.
Because of these limitations, a comprehensive estate plan usually includes other legal tools such as revocable living trusts, irrevocable trusts, powers of attorney, and healthcare directives to ensure that all aspects of your estate are properly managed according to your individual goals.
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What Are the Legal Requirements for Creating a Valid Will in Virginia?
Creating a legally valid will in Virginia means meeting specific criteria to ensure it is recognized by the courts. These criteria include:
- Age and mental capacity
The testator (person creating the will) must be at least 18 years old and of “sound mind.” This means they must understand the nature of their assets and the consequences of distributing them. - Written format
Virginia law requires that a will be in writing. Oral wills are generally not recognized except under very limited circumstances, such as for military personnel in active service. - Signature
The testator must sign the will, if physically able. If they are physically unable to do so, another individual may sign on their behalf in their presence and under their direction. - Witness requirement
A will in Virginia must be witnessed and signed by at least two competent individuals who are present at the time of execution. Witnesses should ideally not be beneficiaries of the will to avoid potential conflicts of interest. - Holographic wills
A holographic (handwritten) will is allowed in Virginia, but must be entirely in the testator’s handwriting and signed by them. A holographic will requires additional proof that the handwriting is authentic. - Self-proving wills
A will can be made “self-proving” by including a notarized affidavit from the testator and witnesses. This simplifies the probate process by eliminating the need for witnesses to testify in court after a testator’s death.
Given the complexities of estate law, consulting an experienced Richmond, VA estate planning attorney can help ensure your will is legally valid and reflects your intentions accurately. Getting legal assistance provides peace of mind that you have created a will that is well-structured and legally sound.
Updating Your Will
A will is not a one-time document. It should be reviewed and updated periodically to reflect any changes in your life circumstances, financial structure, or family structure. Failing to keep your will updated could result in assets being distributed to people you no longer wish to inherit them or other outdated provisions.
You should update your will
- When you marry or divorce
Because your legal and financial obligations change with a marriage or divorce, updates will be necessary to keep your will current. - With the birth or adoption of a child
It will be critical to ensure a new child is properly provided for with an updated will and estate plan. - With the death of your executor or a beneficiary
If someone you have named in your will passes away, you may need to designate a new executor or beneficiary. - With a significant change in your assets
If you have acquired or sold a property, business, or other significant assets, these can impact the distribution of your estate. - If you have relocated to another state
Because estate laws vary by state, moving to another state may require updates to comply with the new legal requirements. - When tax laws have changed
Federal and state tax laws can change over time and your will should be updated to help minimize tax burdens on your loved ones.
Life changes and your estate plan should evolve with those changes. By periodically reviewing your will and making the necessary adjustments, you can have peace of mind knowing that your final wishes will be carried out exactly as you intended.
Grounds for Contesting a Will
A will is intended to clearly outline a person’s final wishes, yet disputes can still arise. You may have grounds to challenge a will if you believe it may have been created under questionable circumstances. Grounds for contesting a will include:
- Lack of testamentary capacity
If the testator was not of sound mind at the time the will was created, it may be found invalid. - Undue influence
If there is evidence that the testator was pressured or coerced into making provisions against their free will, a will may be contested. - Fraud or forgery
If a will is created under fraudulent circumstances or signatures were forged, it can be challenged in court. - Improper execution
A will must be executed in accordance with Virginia law. If it lacks the necessary signatures or witnesses, it may be deemed invalid. - Ambiguities or contradictions
If the language of the will is unclear or contradicts itself, the beneficiaries may challenge the will’s interpretation.
Contesting a will is a complex legal process requiring substantial evidence, such as medical and financial records, witness testimony, expert testimony, and financial and other records. If you suspect a will was created under suspicious circumstances, consulting with an experienced estate planning attorney can help you determine the best course of action and guide you through the process.
Working With Our Experienced Richmond, Virginia Estate Planning Attorneys
It’s never too early to start planning for the future. If you live in Richmond or the surrounding areas, our skilled estate planning attorneys are here to help. At Melone Hatley, P.C., we take the time to understand your goals and needs to create a will or entire estate plan tailored to your needs. Contact us today to take the first step toward securing your legacy and protecting your loved ones. Call us at (804) 893-5067 or schedule a free consultation with one of our client services coordinators.
