WILLS

A will is a statement (oral or written) that (1) directs the disposition of your property after you die, and (2) designates legal guardianship of any minor children or adult dependents. It becomes final when it is properly signed and witnessed, and it becomes effective after you die and when all probate procedures are met.

IMPORTANT: a will has no legal effect as long as the testator (the person who wrote the will) is still alive.

WHY SHOULD I HAVE A WILL?

By creating a will, you make known to your family and the community how you would like your property to be distributed upon your death. A properly executed will with clear language regarding your final wishes will go a long way in helping your family in their difficult time. Even if you do not have a lot of assets, it is important to leave specific instructions for your family and friends for their peace of mind.

WHAT INFORMATION DO I NEED?

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

  • Beneficiaries and heirs: people or organizations who will inherit your property.

  • Property: Create a list of your major assets, including real property, big-ticket purchases (e.g. automobiles) and financial accounts, including bank, retirement and securities. For real estate, include where property is located and who is on the title. It is also important to locate and safeguard any property deed or title in your possession, or to determine where those documents may be located or readily accessed.

  • Bequests:  specific property you wish to gift, and who will receive that property if they die before you.

  • Residuary beneficiary: the person or people who will receive property you do not specify in the will.

  • Executor(s) (and alternate): the names(s) and contact information of the person or people who will be responsible for carrying out the will in probate court. In DC, this designee is called the Personal Representative.

  • Guardian(s) (and alternate): the name(s) and contact information of the person or people whom you wish to care for your minor children or adult dependents.

  • Trustee(s) (and alternate): the name(s) and contact information of the person or people whom you wish to hold property in trust for your children or adult dependents.
    NOTE: Your children cannot legally own property until they turn 18, but you may set any age or condition for your children to inherit, as long as it is at least 18 years and any condition of inheritance is not illegal.

  • 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.

WHAT IS IN A VALID 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.

  • Intent: you must intend to make the document or statement your last will.

  • Voluntary: the will must be prepared and executed without coercion or duress.

  • Proper disposition of property: the will must properly convey your property to your beneficiaries for a lawful purpose.

  • Witnesses and signatures: the will must be properly executed, per state law requirements. 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. Each witness must be at least 18 years old and have no financial interest in your estate.  

PLEASE NOTE: There is no notary requirement for a will in either Virginia or DC. However, some states (including Virginia, but not DC) allow a notarized “self-proving affidavit” to 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.

I ALREADY HAVE A WILL. WHY SHOULD I CONSIDER CHANGING IT?

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 still valid.

  • You have a life-changing event, such as marriage, divorce, birth of a child, death of spouse, or substantive gain or loss of assets.

  • Acquisition or disposal of major assets, such as real estate.

  • Every couple of years, just as a matter of course.

HOW DO I CHANGE MY 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), and should be physically attached to the original will.

WHAT IF I DIE WITHOUT A WILL?

When a person dies without a will (called “dying intestate”), property is distributed according to state laws governing inheritance rights.  This is called intestate succession. Because these are default rules, it is important that you create a will so you do not have the government 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%.

DO YOU HAVE ANY FURTHER QUESTIONS?

If you would like a will, call us for a consultation at (202) 670-2429 or send us an e-mail.  Please note that we do not do complex estate planning or probate at this time.

* * *

An attorney-client relationship is not formed by reading any of the pages on this website or sending an e-mail to the attorney, but only by paying a retainer fee and signing an attorney-client engagement agreement.

This site may be considered AN ADVERTISEMENT or advertising material under the Rules of Professional Conduct governing lawyers in the Commonwealth of Virginia and the District of Columbia.