The current state of affairs has caused more people to give serious thought to their estate planning. While lawyers are still open for business, now that Virginia is in lockdown, it will likely be difficult for the vast majority of people to meet with a lawyer in person. This article offers a number of tips for how to write your own will if you cannot get access to a lawyer. Please note that this advice applies only to residents of Virginia, as other states may have different will requirements and different laws about heirs at law and probate.
1) Start by thinking about who your heirs at law are if you do not have a will:
In the vast majority of situations, if you are married at the time of your death, your estate will pass entirely to your spouse, whether or not you have children. However, if you have a child or children by someone other than your current spouse, your children will receive two-thirds of your estate and your spouse will receive one-third.
If you are not married, or your spouse is deceased, your estate will pass first to your children or their descendants, then to your parents if you have no children, then to your siblings or their descendants if you have no living parents. If you do not have any such relatives, your estate passes to your nearest maternal and paternal family members on each side, going back as far as necessary.
2) Think about what assets you have that pass through your will (i.e., your probate estate). While this may include most of your assets, it does not include any assets which you own jointly with someone else or for which you have named a beneficiary. For example, jointly-owned real estate and bank accounts pass directly to the other joint owner, while bank accounts, retirement accounts, or life insurance which have named beneficiaries pass directly to those beneficiaries and do not go through probate. It may be worthwhile to make a list of all your assets and put a copy of it with your will.
3) The will must be written with testamentary intent – in other words, it must be a document that is intended to be a will. For example, in previous Virginia cases, a document which simply said, “Ever thing left to sister for life times” was found to be a will, whereas letters describing the decedent’s plans generally were not. Therefore, you should use language that makes it clear that the document you are creating is meant as a will. (While not necessary, titling the document “Last Will and Testament of [Your Name]” helps with this.) The clearer your language, the more likely it is that it will be understood to be your will.
4) If you are specifying particular assets to go to certain heirs, make sure to describe them and name the heirs clearly. Don’t simply state “my favorite painting should go to my niece” if you own multiple paintings and have more than one niece!
You should make sure to also include what is known as a “residuary clause” – i.e., state where everything that isn’t specifically designated should go. For example, a will that makes bequests of a testator’s piano, diamond ring, and car, but does not state who gets their solely-owned house, results in what is called a partial intestacy, under which everything not named goes to the testator’s heirs at law.
5) Virginia allows for handwritten, or holographic, wills. Such wills must be written entirely in your own handwriting and signed and dated by you; they do not need to be witnessed.
However, Virginia law does require two witnesses for a typewritten will. In ideal circumstances, you should choose two witnesses who are not named as heirs in your will. That said, Virginia does allow persons with an interest in the will to serve as witnesses, as long as they are competent to do so; i.e., they are over eighteen and have mental capacity. Your witnesses must both be in your presence when you sign and also sign the will in the presence of you and each other.
7) If you have ever written a will or a document that could be construed as a will in the past, you may want to include a clause that specifically revokes the previous will; otherwise the court will assume that both documents are part of your will.
8)Once you have signed and dated your will, place it in a safe but easily accessible place – after all, you want it to be found after your death. A safe deposit box may be difficult to access unless someone else has the key. A good place is in a desk where you keep other important papers.
9) You may also wish to consider putting together an advance medical directive, which allows the person of your choice to make health decisions for you if you are unable to do so, and a financial power of attorney, which allows the person of your choice to make financial decisions on your behalf. The advance medical directive requires at least one witness to your signature and a financial power of attorney requires two.
Following these tips will help most people with simple estate planning; however, if your situation is more complicated, it may be worthwhile to consult with an experienced estate attorney.
The information in this article is offered as a service to the general public. It is not intended as legal advice or as a substitute for the particularized advice of your own counsel. Anyone seeking specific legal advice or assistance in drafting a will should retain an attorney.