Ever thought about drafting a will or hiring a lawyer to draft one for you? Ever wondered why it is important to have a will? For those presently without a will, this blog is intended to benefit you by explaining both the value of having a will and the consequences of dying without a will.
What happens if I die without a will?
When a person dies without a valid will, his or her real and personal property will be distributed through a process called intestate succession. Under the intestacy laws, the people who inherit from the person who died (called “the decedent”) are predetermined by the Commonwealth of Virginia. The intestacy laws are designed to reflect what most people would want to have happen to their property when they die. Below is a summary of the distribution chain under intestate succession in the Commonwealth where the decedent is survived by a spouse and/or children:
- If the decedent was survived by a spouse and all of the decedent’s children, if any, are also children of the spouse à the surviving spouse takes everything.
- If the decedent was survived by a spouse and has at least one child with someone other than the spouse à the decedent’s children take 2/3 of the estate and the surviving spouse takes the remaining 1/3.
- If the decedent is not survived by a spouse, but is survived by children or descendants of deceased children à the children or descendants of deceased children take everything.
Below is a summary of the distribution chain under intestate succession in the Commonwealth where the decedent was not survived by a spouse or children:
- The decedent’s parent(s) take everything.
- If the decedent’s parents are both deceased: the decedents siblings and their descendants take everything.
- If there are none: half of the estate will go to the paternal grandparents and half will go to the maternal grandparents.
- If there are none: the decedent’s aunts and uncles and their descendants will take everything.
- If there are none: the decedent’s great-grandparents will take everything.
- If there are none: the brothers and sisters of the decedent’s grandparents, and their descendants, will take everything.
- If there are no heirs to inherit the decedent’s estate: the decedent’s estate will be distributed by intestate succession to the heirs of the decedent’s most recent spouse, if any, as long as the decedent and the spouse were married when the spouse died.
- If there is no such spouse: the decedent’s estate will go to the Commonwealth!
Why is a will important?
The biggest problem with the intestacy laws is that they do not accurately reflect the wishes of everyone. For example, the decedent might not want his or her property going to a particular person who would inherit under intestate succession. To the contrary, the decedent might have particular people in mind whom he or she wants to leave specific property to. By drafting a will, the “testator” (the person who made the will) has the power to choose what happens to his or her property when he or she dies. This testamentary intent is what makes having a will so important.
There are, however, other benefits of having a will. By drafting a will, the testator can name a guardian for his or her minor child or children in the event the testator dies before the child or children turn eighteen. Moreover, the testator has the power to choose the person who will administer the estate (the “executor”) when the testator dies. Also of importance is the fact that the testator can use a will to create a trust for the support and maintenance of his or her children once the testator passes away.
What are the requirements for a valid will?
The first requirement for a valid will is that the testator have testamentary capacity. Generally, a person is deemed to have testamentary capacity where he or she: (1) is able to understand what it means to write a will; (2) is aware of the property that he or she owns; (3) is able to recall his or her relatives; and (4) is able to combine the previously mentioned elements in order to display that he or she adequately comprehend the act that he or she is engaging in.
The second requirement is that the formalities of executing the will must be satisfied. In Virginia, there are two types of wills, each with its own execution requirements. First, there is a holographic will. To have a validholographic will:
- the will is entirely in the testator’s handwriting;
- it is signed by the testator; and
at least two disinterested witnesses testify that the signature on the
will is, in fact, the testator’s signature.
- Note – a disinterested witness is a witness who is not receiving any property under the will
All other wills in Virginia must be valid written wills. To have a valid written will:
- it must be in writing and signed by the testator (or by someone in the testator’s presence and at the testator’s direction);
- it must be signed or acknowledged in front of two witnesses who are present at the same time; and
- each witness must sign the will in the testator’s presence.
What we recommend
Regardless of the amount of property that you own, it would be a wise decision to consult with an attorney in order to plan for the future. Whether your plan involves providing for loved ones or designating who will be entrusted to care for your children, a knowledgeable attorney is available to help. If you would like to schedule a consultation, I encourage you to call (540) 739-2001 today.