A last will and testament becomes a valid last will and testament when it is signed by the testator, the person who creates the will, and appropriately witnessed and attested to. Usually, that process occurs in their attorney’s office with the required witnesses and notaries. When a document has been properly executed, it becomes enforceable at that time at death. A testator can revoke or change their will at any time prior to death as long as they maintain capacity.
It is important to have the assistance of an experienced wills attorney in Virginia who will be there to serve as a resource for any questions you may have related to important terms and processes in crafting a last will and testament. Because of the complexities of creating a will or trust, and considerations in choosing an executor of your will or administrator of your estate, it will be helpful to retain legal counsel to guide you through and help you to understand the importance of a will.
Where to Keep a Will
Attorneys discuss the appropriate locations for a testator to keep their will during their lifetime. Because the original will is needed to be filed and a copy often cannot be used, it is important for a testator to know where his or her will is.
There are several places where a will can be kept. One of the places that may be complicated or difficult to retrieve is a safe deposit box. If a testator owns a safety deposit box and then passes away, it may be necessary to have court intervention so that box can be accessed to retrieve the last will and testament. Generally, a will should be kept in a safe place that is accessible by the person that needs to retrieve it after death, keeping in mind that the original will is required.
Preparing For Somone Moving Out of State
As a general rule of thumb, if a last will and testament is prepared pursuant to the laws of the jurisdiction where the testator lived that will would be valid under that jurisdiction, and the will would also be valid under the Commonwealth of Virginia.
While that is the case, sometimes probate is more difficult if that will did not have a self-proving affidavit. So, while not necessarily invalid, probate can be a more complicated process without a self-proving affidavit. For example, the District of Columbia and Maryland do not require a self-proving affidavit for wills to be valid, but those wills might have a bit more difficulty in the probate process in Virginia.
Process of Filing
The process of filing a will with the clerk of the court in Virginia varies, depending on the assets of the estate and whether or not the individual filing the will is seeking to qualify as the executor. Generally, to file a will and to begin or to seek qualification as the executor, it is necessary for that person to make an appointment with the clerk’s office and meet with the clerk to prepare for that meeting.
It is helpful if the individual brings along the original last will and testament, an estimate of the assets that are in the estate, a list of all of the named legacies in the will and the heirs of the estate, along with their last known address, a valid ID, and some form of payment to be able to pay any applicable probate fees.
Spouse Renouncing a Will
In Virginia, a spouse has the right to elect against the will. The amount that the spouse is entitled to will depend in large part on the amount of the assets that were classified as marital assets and those that were held individually by both the deceased spouse and the surviving spouse. It will also depend on the years of the marriage of the spouses and whether or not they had children.
A will caveat is when an individual chooses to challenge a last will and testament for any number of reasons. The most common will caveats are that the last will and testament that has been presented is not the most validly executed last will and testament of the decedent, that the decedent executed the last will and testament under duress, or the decedent did not have the required testamentary capacity to sign the documents.
Caveats to wills do not arise often. When they do, the important thing to know is that a successful will caveat can change the distribution from the last will and testament presented. Whether or not distribution is made in accordance with a prior will or in accordance with the laws of intestacy in Virginia will be determined by the case facts.
Working with an Estate Lawyer
It can be helpful to work with an estate and trust attorney when preparing wills because an estate and trust attorney is more familiar with the law of the jurisdiction where the will is created. In addition, estate and trust attorneys have more experience in understanding the complex concepts that are involved with creating a last will and testament. They can also use language that they know has been used without any concern or questions.
An estate and trust attorney can guide someone through the process of creating a last will and testament and ensuring that it accurately expresses what a decedent or a testator would have wanted or wished for with the disposition of their assets. If there is no estate administration, the filing of the original is often still required.
There are a lot of programs that allow individuals to create wills on their own. Those wills to administer the estate sometimes contain language that the testator probably did not intend to include or did not know the effects of their language. It is helpful to consult with an estate planning attorney for assistance throughout the process of creating a last will and testament.