Virginia Wills vs. Trusts
Virginia offers residents significant advantages for estate planning with its favorable legal framework. The Old Dominion State repealed its estate tax in 2007 and provides multiple options for efficient asset transfers, including transfer-on-death designations for both real estate and vehicle titles. With simplified probate for estates under $50,000, recognition of holographic wills, asset protection through qualified self-settled spendthrift trusts, and substantial flexibility in creating valid estate documents, Virginia residents have powerful tools to protect their legacy while minimizing expenses and delays for their heirs.
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Virginia Will Requirements
A Virginia Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound mind” and at least 18 years old
- Format: Must be in writing
- Signature: Must be signed by the testator or by someone else on behalf of the testator at the testator’s request
- Witnesses: Must be witnessed by two competent witnesses
Witness Requirements
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 testator’s estate.
Self-Proved Wills
Under Virginia law, a valid will does not need to be notarized. However, if a compliant notarized affidavit accompanies a will, it is deemed “self-proved” in probate. The self-proved affidavit must be signed by the testator and witnesses and serves as evidence of the will’s authenticity after death.
Memorandum of Personal Property
Virginia law allows a will to incorporate another document disposing of tangible personal property by reference to the document in the testator’s will. 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.
The memorandum may be prepared before or after the will’s execution, can be altered by the testator, and need not satisfy the other formalities for execution of a Virginia will.
Substantial Compliance
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 testator’s will. The document must still be signed by the testator, or it must be shown that the testator’s signature was omitted as the result of a qualifying error.
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Amendment, Revision, and Revocation of Virginia Wills
Revoking a Virginia Will
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
- Physical destruction of the document, such as by cutting, burning, or tearing
Amending a Virginia Will
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.
Partial Revocation
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.
Automatic Revocation by Divorce
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. Property subject to revocation due to divorce is treated as if the former spouse had predeceased the testator. A similar rule is applied to provisions in favor of a former spouse included within a revocable trust, unless the trust instrument provides otherwise.
Effect of Marriage After Will Execution
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 intestate—unless the will or a separate agreement shows that the omission was intentional.
Children Born After Will Execution
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 will—unless the child is provided for or mentioned in the will. 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
Holographic Wills
Virginia law recognizes holographic (handwritten) wills if two disinterested witnesses can testify that the document is wholly in the testator’s own handwriting and bears the testator’s signature.
Oral (Nuncupative) Wills
Virginia does not recognize nuncupative (oral) wills.
Virginia Trust Requirements
Legal Framework
Virginia has adopted the Uniform Trust Act approach to trusts, subject to a few modifications. To create a valid trust, a settlor must:
- Have sufficient mental capacity
- Indicate an intention to create a trust
A trust found to have been induced by fraud, duress, or undue influence is void under Virginia law.
Trust Creation Methods
Virginia trusts become effective upon:
- A settlor’s transfer of property to a trustee for a beneficiary’s benefit
- An owner’s declaration that he or she holds property as trustee
- Execution of a written appointment of a trustee
- Order of a circuit court
- Action of a conservator on behalf of an incapacitated individual
Transfer may be made by a settlor’s agent under authorized power of attorney or under a settlor’s will. If a trust is created by a settlor’s agent acting under power of attorney, the agent must have express authorization to create the trust.
Capacity Requirements
For revocable trusts, the standard for capacity is the same as for wills. Unless a trust’s terms expressly state that it is irrevocable, Virginia trusts are presumed to be revocable.
Trustee and Beneficiary Requirements
For a valid Virginia trust:
- A trust’s trustee must have actual duties to perform
- A trust’s sole trustee cannot also be its sole beneficiary
- Other than a few exceptions—such as animal trusts, charitable trusts, and trusts granting a trustee power to choose beneficiaries from among a class—Virginia trusts must have at least one definite beneficiary
Written vs. Oral Trusts
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. However, the existence and terms of an oral trust must be established by clear and convincing evidence.
Trust Purposes
A Virginia trust’s purposes must be:
- Lawful
- Not inconsistent with public policy
- Possible to achieve
A trust itself and its terms must serve the benefit of the trust’s beneficiaries.
Trust Termination
A Virginia trust can terminate upon:
- Revocation or expiration under the trust’s own terms
- When no purpose of the trust remains to be achieved
- When the trust’s purpose becomes unlawful or impossible
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.
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Special Considerations
Estate Taxes
No State Estate or Inheritance Tax
The Virginia legislature repealed Virginia’s estate tax in 2007, and Virginia does not have any inheritance or estate tax. Large Virginia estates may still be liable for federal estate taxes.
Simplified Probate
Small Estate Procedures
If a decedent’s personal probate estate is valued under $50,000, the estate’s beneficiaries may receive property outside of probate through completion of an affidavit at least 60 days after death. Along with naming all of the estate’s successors, the affidavit attests that any applicable will has been probated and that a claimant is entitled to the asset sought outside probate.
A “small asset” 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. Another comparable affidavit can be used for real estate belonging to an intestate estate.
Non-Probate Transfers
Spendthrift and Asset-Protection Trusts
Spendthrift Provisions
If a Virginia trust includes a valid spendthrift provision, a beneficiary’s creditors (other than certain domestic support obligations and governmental claims) cannot ordinarily attach trust assets until actually distributed to a beneficiary.
Asset Protection Trusts
Generally, creditors of a trust’s 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 settlor’s benefit. Notwithstanding that general rule and subject to a few statutory requirements and limitations, Virginia law recognizes qualified self-settled spendthrift trusts (a/k/a “asset protection trusts”).
Virginia asset protection trusts allow settlors to retain certain beneficial interests in trust assets while still enjoying protection against claims of creditors.
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Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Virginia Special Feature | Holographic wills; substantial compliance; personal property memorandum; TOD deeds and vehicle titles | Asset protection trusts; oral trusts; simplified probate for estates under $50K |
Conclusion
Creating a will or trust does not have to be difficult or intimidating for Virginia residents. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests—can add complexity and result in unforeseen consequences.
Virginia offers unique estate planning tools that provide both flexibility and protection. The state’s substantial compliance doctrine offers a safety net for documents that might not meet all technical requirements but clearly reflect the testator’s intentions. Virginia’s recognition of holographic wills and incorporation of personal property memorandums also provides practical options for many situations.
With no state estate or inheritance taxes since 2007, Virginia provides a favorable environment for estate planning. The state’s simplified probate for estates under $50,000 can significantly reduce administrative complexity. For larger estates, Virginia’s qualified self-settled spendthrift trusts offer valuable asset protection opportunities.
Virginia’s comprehensive transfer-on-death options—particularly for both real estate and vehicles—provide efficient means to transfer significant assets outside of probate while maintaining complete control during life. These tools, combined with the state’s clear spousal protection framework, create an environment where thoughtful planning can yield substantial benefits.
When any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with and licensed under Virginia law to ensure your estate plan takes full advantage of the state’s provisions while avoiding potential pitfalls.
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FAQs: Virginia Wills and Trusts
Q: What are the requirements for a valid will in Virginia?
A: A Virginia will must be in writing, signed by the testator (18+ and of sound mind) or by someone at their direction, and witnessed by two competent people present with the testator. Notarization isn’t required, but a notarized affidavit makes it self-proved for probate.
Q: Does Virginia recognize holographic or oral wills?
A: Virginia recognizes holographic (handwritten) wills if entirely in the testator’s handwriting, signed, and verified by two disinterested witnesses. Oral (nuncupative) wills are not recognized.
Q: How can I avoid probate in Virginia?
A: Avoid probate with living trusts, joint ownership with right of survivorship, tenancy by the entireties (for spouses), payable-on-death (POD) accounts, or transfer-on-death (TOD) designations for real estate, vehicles, and securities. Small estates under $50,000 can use an affidavit.
Q: What is a Virginia asset protection trust?
A: A Virginia asset protection trust is a self-settled spendthrift trust that shields assets from creditors while allowing the settlor some benefits (e.g., income), if statutory rules are met, offering stronger protection than many states.
Q: What protections do surviving spouses have in Virginia?
A: Virginia grants surviving spouses an elective share of 50% of the marital portion of the augmented estate (including probate and some non-probate assets), adjustable by marriage length, unless waived by agreement.
Q: Does Virginia have an estate tax?
A: No, Virginia repealed its estate tax in 2007 and has no inheritance tax. Large estates may still face federal estate taxes.
