WILLS

A will is a statement (oral or written) that directs the disposition of your property after you die.  It becomes final when it is properly signed and witnessed, and it becomes effective after you die and when all probate procedures are met.  

It is important to note that a will has no legal effect as long as the testator (the person who wrote the will) is still alive.

What you need to know before you write a will

Before you create a will, you have to gather necessary information.  This includes:

  • Beneficiaries and heirs -- people or charitable organizations who will inherit your property.
  • Property -- For real estate, include where property is located and who is on the title.
  • Bequests -- the names of people and specific property they will receive, and who will receive the property if they do not outlive you.
  • Residuary beneficiary -- the person or people who will receive property you do not specify in the will.
  • Executor (and alternate) -- the person or people who will be responsible for carrying out the will.
  • Guardian (and alternate) -- person or people who will care for your children or adult dependents.
  • Provisions for disposition of your debts and funeral expenses.  Usually, this comes from the residuary estate (i.e., what is leftover after specific bequests of property).  Please note that will executions often take place after the funeral, so it may be prudent to take care of burial arrangements separate from a will.

Elements of a will

In order to be legally binding, a will must meet several basic requirements.  These are: 

  • Legal age -- you must be 18 years old in both DC and Virginia.
  • Testamentary capacity -- also referred to as "of sound mind," meaning you must have the sufficient mental capacity to create a legal will.
  • You must have the intent to make the document or statement your last will.
  • The will must be voluntary, without coercion or duress.
  • The will must properly dispose of your property.
  • The will should be written and witnessed by two other people who are at least 18 years old (though wills can be oral).
  • The will must be properly executed, per state law.  In DC and Virginia, this means that you must sign the will in front of two witnesses, and both witnesses in turn must sign as well in your presence.  

PLEASE NOTE: There is no notary requirement for a will in either Virginia or DC. However, using a notary would make it unnecessary for the will's witnesses to appear in probate court to authenticate the will if that is in dispute.

Once your will is properly signed and witnessed, you should keep the original in a secure place, such as a fire-proof safe. There are also several reasons to re-examine a will after you execute it:

  • Moving to another state or country -- each state or country has its own law of wills. If you do move, you should have your will checked by a local attorney to determine if it is valid.
  • You have a life-changing event, such as marriage, divorce, birth of a child, or substantive gain or loss of assets.
  • Acquisition or divestiture of major assets, such as real estate.
  • Every couple of years, just as a matter of course.

 

Making changes to your will

There are two ways to change your will:

  1. You can write an entirely new will.  A properly executed will automatically supersedes and cancels any previous wills. However, you should destroy all originals and copies of any previous wills once you execute a new one.
  2. You can make amendments to specific provisions while leaving the rest of the will intact.  These are called codicils, and they must be executed and witnessed separately under the same conditions as a full will (i.e., signed before two witnesses, and both witnesses signing).

If you die without a will

When a person dies without a will, state law substitutes, and property is distributed according to statute.  This is called intestate succession.  Because these are default rules, it is important that you create a will so you do not have the state distributing your property in a matter that is against your wishes.

In Virginia, if you die with:

  • Children, but no spouse -- children inherit 100%.
  • Spouse, but no children -- spouse inherits 100%.
  • Spouse and children, all of whom are descendants of that spouse -- spouse inherits 100%.
  • Spouse and children, at least one of whom is from someone other than than that spouse -- spouse inherits 1/3, children inherit 2/3.
  • Parents, but no spouse or children -- parents inherit 100%.
  • Siblings, but no spouse or parents -- siblings inherit 100%.

In the District of Columbia, if you die with:

  • Children, but no spouse -- children inherit 100%.
  • Spouse, but no children or parents -- spouse inherits 100%.
  • Spouse and children from you and that spouse, and spouse has no other descendants -- spouse inherits 2/3, children inherit 1/3.
  • Spouse and children from you and that spouse, and spouse has descendants from another relationship --  spouse inherits 1/2, your children inherit 1/2.
  • Spouse and children from you and someone other than that spouse -- spouse inherits 1/2, your children inherit 1/2.
  • Spouse and parents -- spouse inherits 3/4, parents inherit 1/4.
  • Parents, but no spouse or children -- parents inherit 100%.
  • Siblings, but no spouse, children or parents -- siblings inherit 100%.

If you would like a will, call us for a consultation at (571) 393-1236, or send us an e-mail.  Please note that we do not do complex estate planning or probate at this time.

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