Virginia Will Lawyer

Dying without a will in Virginia means you die “intestate,” and state laws, not your wishes, will determine how your estate will be distributed after your death. Intestate succession in Virginia follows the following rules:

• If you are married without children or other descendants, your surviving spouse inherits your entire estate.
• If you have children (or other descendants) and no spouse, your descendants will inherit your entire estate.
• If you are married with children with your spouse, your surviving spouse inherits your entire estate. 
• If you are married and have at least one child from a previous relationship, one-third of your estate is inherited by your surviving spouse, and the rest is divided among your descendants.
• If you have no spouse or children but you are survived by one or both of your parents, they will inherit your estate.
• If you have no spouse, descendants, or living parents, your siblings will inherit your estate.
• If you have no spouse, descendants, living parents, or siblings, other family members can inherit your estate. 
• Unfortunately, in the event you have no surviving family, your estate will go to the Commonwealth of Virginia.

Without a will, you don’t have the ability to designate who benefits from your estate and in what proportions. Furthermore, the probate process can be far more time-consuming and costly to administer the estate without the direction of a will.

If you die without a will, the court may also have to decide who will care for your minor children. If you are married or your children’s other parent is still alive, your spouse or former spouse will care for your children. But if there is no surviving parent, the court must appoint a guardian. This may not align with your preferences and present the potential for family disputes.

In Virginia, a will can be contested by an interested party. This can be an heir, someone who would be an heir if the decedent passed without leaving a will, or a beneficiary from an earlier version of the will after it has changed. However, you must have precise reasons to contest a will. These include:

• Undue influence: Someone exerted pressure or influence on the decedent while drafting the will.
• Incapacity at the time of signing: The decedent was not in their right mind when they signed their will.
• Fraud: The will is false or was created under false pretenses.
• Noncompliance with state laws: Something about the will is out of compliance with the law, such as if there were no witnesses or the document was improperly filed.

There is a time limit to contest a will. This statute of limitations is one year from the date probated or filed in the office of the clerk of the court.

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Tips to Avoid a Will Contest

Hire an Attorney

An attorney can help with clear wording compliant with state laws. This can help to avoid a will contest for noncompliance or fraud.

Choose Disinterested Witnesses

Choosing the right witnesses with no interest in the distribution of assets can help in several ways. It can avoid accusations of undue influence, misconduct, or fraud. While it is not required to use a disinterested witness, it’s best not to use a beneficiary as a witness. A notary is not required, but it helps prove the validity of a will without requiring the witnesses to appear and testify regarding execution of the will.

Obtain a Competency Evaluation

To avoid accusations of incapacity, always have a doctor evaluate your competency at the time of signing and filing your will. You can then keep this doctor’s evaluation with the will so that there is no question about your mental capacity when you signed.

Write a Letter of Intent

If you intend to leave anyone out of your will or give them a reduced share, always write a letter of intent that clearly states what you want and why. You can keep this letter with your will. It will then act as a further explanation against any challenges.

Include a No-Contest Clause

A no-contest clause simply states that if anyone contests the will and loses, they inherit nothing. This can be a powerful deterrent to anyone trying to get more than their due share.

How is a Living Will Different From a Will?

Living wills, also known as advance medical directives in Virginia, are legal guidelines that specify your preferences for medical care and decisions if you become incapacitated or too ill to care for yourself.
An advance healthcare directive allows you to create specific instructions for your care in the event that you are unable to do so. These guidelines enable you to:

• Demand that a certain procedure or treatment be provided or withheld
• Designate a person to make medical decisions on your behalf, including the choice to donate all or specific parts of your body through organ or tissue donation

The Importance of a Living Will