VIRGINIA WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Code of Virginia, Title 64.2.ย Wills, Trusts and Fiduciaries.
Wills:ย Subtitle II, Chapter 4 (Va. Code ยงยง64.2-400, et. seq.).
Trusts:ย Subtitle III, Trusts (Va. Code ยงยง64.2-700, et. seq.).
Virginia Will Requirements.
A valid Virginia will must be in writing, signed by the testator (or someone else on behalf of the testator at the testatorโs request), and witnessed by two competent witnesses. ย The testator must be at least 18 years of age and of sound mind.ย Though disinterested witnesses are generally preferable, an otherwise competent witness can still act as witness to a will, even if he or she has an interest in the will or the testatorโs estate.
Under Virginia law, a valid will does not need not to be notarized.ย However, if a compliant notarized affidavit accompanies a will, it is deemed โself-provedโ in probate. ย The self-proved affidavit must be signed by the testator and witnesses and serves as evidence of the willโs authenticity after death.ย ย
Virginia law allows a will to incorporate another document disposing of tangible personal property by reference to the document in the testatorโs will.ย Often referred to as a Memorandum of Personal Property, the incorporated document must be signed by the testator and identify property and beneficiaries with reasonable certainty.ย The memorandum may be prepared before or after the willโs execution, can be altered by the testator, and need not satisfy the other formalities for execution of a Virginia will.
In Virginia, a written document that does not technically meet the required formalities for a will can nonetheless be treated as a will if a proponent of the document can present clear and convincing evidence that the document was intended as the testatorโs will.ย The document must still be signed by the testator, or it must be shown that the testatorโs signature was omitted as the result of a qualifying error.
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Amendment, Revision, and Revocation of Virginia Wills.
Virginia wills may be revoked by execution of a later will (or similar document satisfying the requirements for execution of a will) that expressly revokes the earlier will.ย A Virginia will may also be revoked through physical destruction of the document, such as by cutting, burning, or tearing.ย ย
Amendment can be accomplished through execution of a codicil that satisfies all requirements for execution of a valid will. Simply making written changes to a will that has already been executed is insufficient to revise or amend an existing will.
If a later will or codicil only revokes part of a prior will or includes provisions which are inconsistent with terms included in the prior will, the earlier will is revoked to the extent of the inconsistencies or partial revocation.ย ย
If, after executing a will, a testator is divorced, any provisions in the will in favor of the former spouse are deemed to have been revoked.ย Property subject to revocation due to divorce is treated as if the former spouse had predeceased the testator. ย A similar rule is applied to provisions in favor of a former spouse included within a revocable trust, unless the trust instrument provides otherwise.
If a testator marries after executing a will, a surviving spouse not addressed in the will receives a share of the estate as if the testator had died intestateโunless the will or a separate agreement shows that the omission was intentional.
If, after executing a will, a testator has a child, the child is entitled to an interest in the estate as if the testator had died without a willโunless the child is provided for or mentioned in the will.ย If the testator already had children who are provided for in the will, an after-born child is entitled to the lesser of the intestate share or the value of bequests made to other children.
Holographic and Oral Wills.
Virginia law recognizes holographic (handwritten) wills if two disinterested witnesses can testify that the document is wholly in the testatorโs own handwriting and bears the testatorโs signature.
Virginia does not recognize nuncupative (oral) wills.
Virginia Trust Requirements.
Virginia has adopted the Uniform Trust Act approach to trusts, subject to a few modifications.ย To create a valid trust, a settlor must have sufficient mental capacity and must indicate an intention to create a trust.ย A trust found to have been induced by fraud, duress, or undue influence is void under Virginia law.ย For revocable trusts, the standard for capacity is the same as for wills.ย Unless a trustโs terms expressly state that it is irrevocable, Virginia trusts are presumed to be revocable.ย ย
Virginia trusts become effective upon a settlorโs transfer of property to a trustee for a beneficiaryโs benefit.ย Transfer may be made by a settlorโs agent under authorized power of attorney or under a settlorโs will.ย If a trust is created by a settlorโs agent acting under power of attorney, the agent must have express authorization to create the trust.ย A trust may also be created by an ownerโs declaration that he or she holds property as trustee; upon execution of a written appointment of a trustee; by order of a circuit court; or by a conservator acting on behalf of an incapacitated individual.
A Virginia trustโs trustee must have actual duties to perform, and a trustโs sole trustee cannot also be its sole beneficiary.ย Other than a few exceptionsโsuch as animal trusts, charitable trusts, and trusts granting a trustee power to choose beneficiaries from among a classโVirginia trusts must have at least one definite beneficiary.
Though most trusts are evidenced by a written trust instrument signed by the settlor, a written instrument is not required to create a valid trust in Virginia.ย However, the existence and terms of an oral trust must be established by clear and convincing evidence.ย
A Virginia trustโs purposes must be lawful, not inconsistent with public policy, and possible to achieve.ย A trust itself and its terms must serve the benefit of the trustโs beneficiaries.ย
A Virginia trust can terminate upon revocation or expiration under the trustโs own terms, when no purpose of the trust remains to be achieved, or when the trustโs purpose becomes unlawful or impossible.ย Noncharitable trusts may also be modified or terminated by the consent and agreement of all beneficiaries, the settlor, and/or with approval of a court.
The Estate Planners Tactical Guide
Essential Legal Protection for AchieversSpecial Considerations.
Estate Taxes: The Virginia legislature repealed Virginiaโs estate tax in 2007, and Virginia does not have any inheritance tax.ย Large Virginia estates may still be liable for federal estate taxes.ย
Simplified Probate:ย If a decedentโs personal probate estate is valued under $50,000, the estateโs beneficiaries may receive property outside of probate through completion of an affidavit at least 60 days after death.ย Along with naming all of the estateโs successors, the affidavit attests that any applicable will has been probated and that a claimant is entitled to the asset sought outside probate.ย A โsmall assetโ valued at $25,000 or less may be similarly transferred if a personal representative has been appointed (or an application is pending), and the recipient affirms the fiduciary duty to safeguard the asset and pay estate claims.ย Another comparable affidavit can be used for real estate belonging to an intestate estate.ย
Non-Probate Transfers:ย In addition to living trusts, Virginia law offers multiple options for transfer of assets outside probate.ย Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย Virginia also recognizes tenancy by the entireties, another joint ownership form that includes a right of survivorship.ย Tenancy by the entirety can be used for both real and personal property in Virginia but is only available in the case of co-ownership by two spouses.ย ย
POD (payable-on-death) and TOD (transfer-on-death) designations, which provide for automatic transfer to a beneficiary upon an ownerโs death, are particularly useful in Virginia.ย POD designations can be added to financial accounts and CDs. TOD designations can be used with registered securities, brokerage accounts, and some other similar assets.ย Notably, Virginia is one of the few states that recognize TOD designations on both real estate deeds and motor vehicle titles.ย In either case, the owner retains full ownership until death, at which point the beneficiary takes title outside probate.
Spendthrift and Asset-Protection Trusts:ย If a Virginia trust includes a valid spendthrift provision, a beneficiaryโs creditors (other than certain domestic support obligations and governmental claims) cannot ordinarily attach trust assets until actually distributed to a beneficiary.ย ย
Generally, creditors of a trustโs settlor can reach assets held in a revocable trust and can reach assets held in an irrevocable trust to the extent distributions could be made for the settlorโs benefit.ย Notwithstanding that general rule and subject to a few statutory requirements and limitations, Virginia law recognizes qualified self-settled spendthrift trusts (a/k/a โasset protection trustsโ).ย Virginia asset protection trusts allow settlors to retain certain beneficial interests in trust assets while still enjoying protection against claims of creditors.ย
Spousal Shares: To protect against disinheritance, Virginia law affords surviving spouses the waivable right to claim a spousal elective share in the โmarital propertyโ portion of a decedent spouseโs โaugmented estate.โย Along with wealth within the decedentโs probate estate, the augmented estate includes non-probate assets like assets held in revocable trusts, assets with a right of survivorship, and assets with POD or TOD designations.ย The portion of a decedent spouseโs augmented estate constituting โmarital propertyโ ranges from 3 to 100 percent, depending on how long the couple has been married.ย The spousal elective share is then equal to one-half of the value of the resulting marital estate.
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
