“Do I even need a Will?” This is one of the most common questions we hear as estate planning attorneys. The reason for the question varies but the most common reasons include:
- “I don’t own anything;”
- “I have a very simple estate;“ and
- “I just want my kids to get everything.”
Regardless of the reasoning, the answer to this question is almost always, “Yes.”
Every adult, with the capacity to do so, should create a Last Will and Testament. A Will is a document that lays out what you would like to happen to your property in the event of your death. Your Will also names an individual (or individuals) to serve as your personal representative/executor/executrix who is then the person charged with carrying out your last wishes. For folks with minor children, your Will also nominates guardians for your children.
Consequences of No Will or an Invalid Will
If you fail to create a Will and pass away, your estate becomes subject to the laws of intestacy. For intestate estates, the Commonwealth of Virginia dictates where your property goes by way of the intestate succession rules set out in the Virginia Code. Proceeding under the laws of intestacy can result in individuals you may not want to receive your property (such as an estranged child), receiving portions of your estate. Also, failing to have a validly executed Will prevents you from naming guardians for any minor children and, instead, leaves that decision up to a court of competent jurisdiction. A surefire way of preventing these situations is to create a valid, properly executed Will.
Proper Will Execution
To ensure that your Will is valid and properly executed, it should be prepared by someone familiar with the laws of the Commonwealth of Virginia. Having such a person draft your Will ensures the formalities of the drafting and execution of your Will conform to the laws of Virginia and that your Will will be accepted by the Court when the time comes. There are online Will preparation services available, but I would caution you to read their disclaimer pages closely. Many of these companies’ disclaimers specifically state that their documents and the information on their sites are not guaranteed to be correct, complete, or up-to-date. Your JGB attorney has no such disclaimer.
Generally, for a Will to be valid in the Commonwealth of Virginia, the Will must be signed by the testator (the individual making the Will) in the presence of two witnesses who must also sign the Will in the presence of the testator. Wills need not be notarized, but notarizing a Will in the presence of the testator and the witnesses allows the Court to accept the Will without testimony from the witnesses to the document.
Physical Presence Requirement
This requirement for the testator and the witnesses to be in each other’s presence requires physical presence. Virginia law does not yet allow for Wills to be executed remotely or with witnesses who are not physically present with the testator at the time the testator signs the Will (e.g., via webcam, Skype, Zoom, or another telecommuting device). If the witnesses are not physically present with the testator at the time the Will is signed, the Will could very likely be successfully challenged. A successful challenge could result in the Will being thrown out and the estate proceeding under the laws of intestacy.
Sometimes the requirement for physical presence can be a challenge, especially during the current climate of the COVID-19 related quarantine. However, in order to better serve our clients and ensure, to the best of our ability, the safety of our clients and staff, Johnson, Gasink & Baxter, LLP has instituted revised signing procedures to validly execute Wills and other documents, including the construction of a “clean room” in our Williamsburg location. (If you’d like to see a video of our “clean room,” please visit our Facebook page at www.facebook.com/JGBLLP.)
In conclusion, yes, you need a Will, and it is critically important that your Will adhere to all formalities required by the Virginia Code. If you are interested in drafting your Will and ensuring it conforms to the law, contact a JGB attorney today for assistance.