Virginia Last Will and Testament Law

Wills and Estates – Last Will and Testament Law – Virginia

Note:  This summary is not intended to be an all inclusive discussion of the law of wills in Virginia, but does include basic and other provisions.  A discussion of hand written wills is not included.

Who may make a will: Every person 18 years of age or older, and of sound mind may make a will disposing of his or her property.  A person emanicipated by law may also make a will. 64.1-46.64.1-47.

Who may not make a will
No person (i) of unsound mind or (ii) under the age of eighteen years, unless emancipated pursuant to Article 15 (§ 16.1-331 et seq.) of Chapter 11 of Title 16.1, shall be capable of making a will. 64.1-47.

EExecution of Will: No will shall be valid unless it be in writing and signed by the testator in the presence of at least two competent witnesses, present at the same time. The witnesses shall subscribe the will in the presence of the testator, but no form of attestation shall be necessary. 64.1-49.

When execution of appointment by will valid
No appointment made by will, in exercise of any power, shall be valid unless the same be so executed that it would be valid for the disposition of the property to which the power applies, if it belonged to the testator; and every will so executed shall be a valid execution of a power of appointment by will, notwithstanding the instrument creating the power expressly require that a will made in execution of such power shall be executed with some additional or other form of execution or solemnity. 64.1-50.

Interested persons as competent witnesses: No person shall be incompetent to testify for or against the will solely by reason of any interest in the will or the estate of the testator. 64.1-51.

Revocation of wills generally: If a testator having an intent to revoke, or some person at his direction and in his presence, cuts, tears, burns, obliterates, cancels or destroys a will or codicil, or the signature thereto, or some provision thereof, such will, codicil or provision thereof is thereby void and of no effect. If a testator executes a will or other writing in the manner in which a will is required to be executed, and such will or other writing expressly revokes a previous will, such previous will, including any codicil thereto, is thereby void and of no effect.

If a testator duly executes a will or codicil which does not expressly revoke a former will or codicil, but which expressly revokes a part thereof, or contains provisions inconsistent therewith, such former will or codicil is revoked and superseded to the extent of such express revocation or inconsistency if the later will or codicil becomes effectual upon the death of the testator. 64.1-58.1.

Revocation by divorce or annulment: If, after making a will, the testator is divorced a vinculo matrimony or his marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse. Any provision conferring a general or special power of appointment on the former spouse and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise, shall also be revoked. 64.1-59.

Separate writing identifying recipients of tangible personal property; liability for distribution; action to recover property: If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with reasonable certainty and is signed by the testator although it does not satisfy the requirements for a will. Bequests of a general or residuary nature, whether referring only to personal property or to the entire estate, are not specific bequests for the purpose of this section.

The written statement or list may be referred to as one that is in existence at the time of the testator’s death, prepared before or after the execution of the will, altered by the testator at any time, and a writing that has no significance apart from its effect on the dispositions made by the will. When distribution is made pursuant to such a written statement or list, a copy thereof shall be furnished to the commissioner of accounts along with the legatee’s receipt.

A personal representative shall not be liable for any distribution of tangible personal property to the apparent legatee under the testator’s will made without actual knowledge of the existence of a written statement or list, nor shall he have any duty to recover property so distributed. However, a person named to receive certain tangible personal property in a written statement or list that is effective under this section may recover that property, or its value if the property cannot be recovered, from an apparent legatee to whom it has been distributed in an action brought for that purpose within one year after the probate of the testator’s will.

This section shall not apply to a writing admitted to probate as a will and, except as provided herein, shall not otherwise affect the law of incorporation by reference.64.1-45.1.

Legislative History: 1995, c. 363.

Wills of living persons lodged for safekeeping with clerks of certain courts: Any person or his attorney for him may, during his lifetime, lodge for safekeeping with the clerk of a court having probate jurisdiction in the county or city of his residence any will executed by such person; and the clerk shall thereupon receive such will and give the person lodging it a receipt therefor. The clerk shall then place the will in an envelope and seal it securely, numbering the envelope and endorsing thereon the name of the testator and the date on which it is so lodged, and shall index the same alphabetically in a permanent index kept for the purpose, showing therein the number and date such will is so deposited. The fee for such lodging, indexing and preserving shall be two dollars, which shall be paid to the clerk when the will is received.

Any attorney-at-law, bank or trust company may, upon holding a will lodged with him or it for safekeeping by a client for seven years or more, and having no knowledge of whether the said client is alive or dead after such time, lodge such will with the clerk as provided in the preceding paragraph for which the clerk shall be paid two dollars for such lodging, indexing and preserving.

The clerk shall carefully preserve the envelope containing the will unopened until it is returned to the testator or his nominee in the testator’s lifetime upon request of the testator or his nominee in writing or until the death of the testator. If such will is returned during the testator’s lifetime and is later returned to the clerk, it shall be considered to be a separate lodging under the provisions of this section.

Upon notice of the testator’s death, the clerk shall open the will and deliver the same to any person entitled to offer it for probate.

Provided, the provisions of this section are applicable only to the clerk’s office of a court where the judge or judges of such court have entered an order authorizing the use of the clerk’s office for such purpose. 64.1-56

Legislative History: Code 1950, § 64-57.1; 1958, c. 392; 1964, c. 390; 1968, c. 656; 1970, c. 567.

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