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A simple will is the most common form of estate planning used to pass assets from one person to another.  A simple will enables you to choose a person to manage your estate and control where your property goes once you pass.   The Callan Law Firm, P.C. prepares simple wills on a flat fee basis.  To speak with an attorney, contact us now.  To learn more about wills and whether a will is the appropriate tool for you, read on.

A will is a signed writing in which a person (often called the “testator”) orders how his property is to be disposed after his death.  Virginia, as well as every state, has specific laws which must be complied with for a will to be valid.  Therefore, it is important that if you have recently moved to Virginia, or if you are planning on leaving Virginia, you speak with an estate planning attorney to determine whether any action is necessary on your part.

Every mentally competent person eighteen or older should have a valid will. Here are just a few of the reasons:

  • You can control how your property is disposed of upon your death;
  • You can choose an executor (a person responsible for overseeing and administering your estate);
  • You can reduce the expenses of administering your estate;
  • You can save taxes;
  • You can name a guardian for your minor children, should you pass;
  • You may create, or otherwise provide for, a trust for the support and education of your children without costly court proceedings.

Given the rigorous technical requirements for wills, and the procedural complexities involved with execution, it is always advisable to retain an attorney to assist you with will preparation and execution.  However, in order to provide a bit of background on the process, here are some of the requirements for a valid Virginia will.

In Virginia, the signing of a will must generally be witnessed by two competent persons, who also must sign the will in front of the testator. (An exception to the witness requirement is made if the testator writes out the entire will in his or her own handwriting and signs and dates it.)

 Although the law does not require a will to be notarized, it is a highly recommended practice followed by most lawyers. If the will includes a notarized “Self-Proving Affidavit”, the will is presumed to be properly executed and is accepted by the court without testimony from the witnesses.
A will is effective until a person revokes the will, usually by signing a superseding will or written revocation.  It should be noted, however, that certain life events can change the effect of a will, e.g. if you get married or have a child, the law may provide for certain mandatory distributions to your spouse or child notwithstanding the statements contained in your will. Generally, whenever you have a child, get married, or get divorced, you should speak with your estate planning to see whether any action is necessary on your party (It should be noted that these aren’t the only times you should speak with an  estate planning attorney).

Since your will is not effective until you actually pass, it can be changed at any time so long as you are alive and mentally competent.

In the event that you do not have a valid will, a Virginia statute controls who receives your property. In Virginia, if you are married, your estate typically passes to your surviving spouse; but if you have surviving children or their descendants who are not also the children or their descendants of your surviving spouse, your children and the descendants of any deceased child divide two-thirds of your estate, and your spouse takes the other one-third.

Some attorneys advise that joint ownership is an effective substitute for a will.  This is not the case.  While joint ownership between spouses is sometimes appropriate, in many cases, joint ownership of assets between spouses with large estates may result in estate taxes at the death of the survivor, which could have otherwise been avoided. Joint ownership between parent and child or other individuals who are not married to each other, or even between spouses when one spouse is not a U.S. citizen, may cause unexpected and unnecessary gift taxes.  Furthermore, although joint ownership is sometimes appropriate, a will is still necessary to ensure that you account for all assets not held jointly.

Similar to some people’s belief that joint ownership can be used as a substitute for a will, some people think that a “living” revocable trust can be a substitute for a will.  While a living revocable trust offers many benefits, it does not provide the comprehensive disposition of assets that a will offers.  In other words, if any property or other assets are not included in the trust, then a will is likely to be necessary in order to ensure that such assets are transferred to your intended beneficiaries.

Is a Simple Will All I Need?

While executing a simple will is preferable to having no will at all, a will does not keep your estate out of probate, nor does it provide creditor protection for those to whom you are passing property.  If probate avoidance is important to you or if you believe your estate may be taxable, you may wish to explore the use of a trust in your estate plan.  To learn more about trusts generally, click here.  To learn about basic estate tax issues and possible trust solutions, click here.  To speak with an attorney to discuss these issues or answer any other questions you might have, click here.