Wills, Trusts, Power of Attorney

 A will is a document which lays out how your belongings will be distributed after your death.  At a minimum, a will should contain information regarding  appointment of a guardian if you have children under 18 years old, appoint an executor to administer your will when you die, and it should spell out specifically how you want your property distributed. 

 Do You Need a Will?  The answer to that question is different for each person.  Wills are not just for the wealthy.  A will ensures that whatever personal belongings and assets you have will go to family or friends you designate. Without a will, the court makes decisions based on the laws of Virginia.  If you have children, a will is a must to ensure that you get to choose your children’s guardian, not the state.  Few people plan to die in the near future, but those who die suddenly without a will are subjecting their family and loved ones to confusion and anxiety at a time when they are already at what is already a difficult time. There are other benefits to having a will, including tax benefits.

Do You Need a Lawyer to Make a Will? Not necessarily.  A will is easy to produce and can be prepared using legal software available online, you can also create your own Living Will, Living Trust, Bypass Trust, Financial Power of Attorney and other legal forms available for download from the Internet. However, if you have a more complicated estate, or you’re unsure how the nuances of state law may affect whether or not your will is executed in accordance with your wishes, you may want a lawyer.  A properly designed will and estate plan may pay for itself by helping to reduce taxes and other costs.  

What Kind of Wills are Recognized in Virginia? Virginia recognizes two kinds of wills, the formal kind we’re all familiar with that has formal language ‘manifesting testamentary intent’, it requires two competent witnesses present at the same time who sign as witnesses in the presence of the Testator. Additionally, Virginia recognizes what are called holographic wills.   A holographic will is a will that is written entirely in the Testator’s own handwriting and two disinterested witnesses affirm the handwriting. (See Code of Virginia § 64.1-49.)  Who Can Make a Will? Anyone who possesses a legal right to have and hold something may use a will to dispose of that property (real property (such as real estate) or personal property).(See Code of Virginia § 64.1-46). 

 Who Can’t Make a Will?  A person under 18 years old, or a person who does not have the mental capacity (i.e. he or she is of unsound mind) though they be over 18 years old. (See Code of Virginia § 64.1-47.)  Will Terminology.   Below are some basic terms that frequently arise during probate of a will:

 Testator- that’s you, the person disposing of his/her property.

 Probate-the process by which legal title is transferred from one who has died, to his/her beneficiaries.

 Beneficiaries- those who are designated to receive legal title to real or personal property.