What Is a Will?

A Will is a written document that gives instructions on how you want your property distributed when you die.

What Happens If You Die Without a Will?

The property of a person who dies without a Will is distributed according to current Virginia law in the following order:

All of your property will usually go to your spouse (husband or wife) unless you are survived by any of your children (or their descendants) who are not your surviving spouse's children. In that situation, your surviving spouse would receive only one-third of your "estate" (the property you own at your death); and your children, or their descendants, would receive two-thirds.

EXAMPLE 1: John dies without a Will. His wife, Sue, and their two children, Steve and Jill, survive him. Sue inherits everything.

EXAMPLE 2: Jay dies without a Will. His second wife, Audrey, and Darlene (Jay's daughter by his first wife) and Jane (Jay and Audrey's daughter) survive him. Audrey inherits one-third of Jay's property and Darlene and Jane receive one-half of the remaining two-thirds.

If your spouse does not outlive you, all of your property will go to your children or their descendants.

If you have no surviving spouse, children, or descendants of children, your estate will go to your mother and/or father if they outlive you.

More distant relatives may receive your property if none of your immediate family survives you.

Remember that this law can be changed in the future.


Do You Need a Will?

The only way to be sure that your property will be distributed to the person(s) you choose is to have a Will written.

Other Reasons for Having a Will:

You may leave property to a friend or charity that would otherwise receive nothing under Virginia law.

You may leave specific property to persons you choose (my collection of baseball cards to Aunt Susie).

A Will often makes the distribution of your estate quicker and easier, and that makes it easier for your family.

If a child under 18-years old inherits property from someone who did not have a Will, a court will have to appoint a guardian to manage the property. This is an expensive and very inconvenient process. A properly drafted Will avoids this.

You can name the person you want to handle the distribution of your property (your executor) in your Will; otherwise a court will determine who handles your estate.


Do You Need a Lawyer to Write Your Will?

Your Will should be prepared by a lawyer because a lawyer would know how to write it so that it will be clear what you want done with your property.


Is a Handwritten Will Legal?

Even though handwritten Wills are legal in Virginia, there are several legal requirements that must be followed before it will be considered valid, and these requirements make it dangerous to try and write a handwritten Will. The Will must be entirely in your handwriting and two witnesses who receive nothing under the Will must be willing to swear that it's your handwriting.


What Should You Do Before Meeting with a Lawyer?

Decide who should receive your property at your death (your "beneficiaries"). Do you want to leave all your property to one person, or do you want it divided?

Do you want to leave certain items of property to specified people (my baseball cards to Aunt Susie)? If so, make a list.


Who should receive your property if one of your beneficiaries dies before you?

Who do you want to serve as your executor? The executor's duties will include collecting your property, paying any debts, and distributing your property according to your will. The person you may name should be capable of handling these duties and should be someone you trust to carry out your wishes.

It is a good idea to name an alternate executor in case your executor is unable to serve.


Is it Legal to Leave Your Spouse or Children Out of the Will?

A surviving spouse has a right to claim at least one-third (if there are no surviving children) of the estate. If the will gives the surviving spouse less than her share, she can claim her share anyway.

Property that is owned jointly with the "right of survivorship" is automatically owned by the surviving joint owner, regardless of the will. Typically, this includes some joint bank accounts and jointly owned real estate.


Is Your Life Insurance Part of the Estate?

Proceeds from a life insurance policy will not be distributed under the Will. The person who receives the proceeds of your policy will not be required to be use the money to pay for funeral expenses unless your Estate is named as the beneficiary of the policy.


Can You Change or Revoke Your Will?

You can change or revoke your Will because it is not effective until your death.

Do not write on your will after if has been signed by you and your witnesses because that may revoke it. Your lawyer should make changes for you.

You should review your will periodically to determine if you want to make any changes.

Last Review and Update: May 02, 2012
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