- A person must meet the state's requirements to make a will. In Virginia, a testator -- the person who makes a will -- must be no younger than 18 and have full mental capacity. There are also requirements for the document itself that must be met for a will to be honored during probate. The will must be in writing and the testator must sign it. Two witnesses must be present when the will is signed and must also sign the will. The witnesses must be impartial, so they cannot be named as beneficiaries in the will. A will does not have to be notarized, but a notarized will is considered self-proving. This saves time during probate, because witnesses do not have to testify to the testator's identity and mental competence.
- Section 64.1 of the Virginia Code sets forth how a person's estate will be divided if he does not have a will. A surviving spouse is the first to claim the estate under 64.1-1. If the decedent had children and at least one child is not also the surviving spouse's child, the spouse's inheritance is limited to one-third of the estate and the children inherit equal shares of the remaining two-thirds. If there are children but no spouse, the children inherit the entire estate. When the decedent was not married at the time of his death and is not survived by children, his parents will inherit the estate if they are still living. If not, the decedent's siblings or their children may inherit. More distant relatives can only claim the estate if all closer heirs are deceased. However, if there are no surviving heirs, 64-1.12 states that the entire estate passes to the Commonwealth of Virginia.
- If a spouse is left out of the decedent's will, she is entitled to claim her "elective share." This inheritance is awarded from the probate estate (the value of all property in the decedent's will) less funeral expenses and administrative costs. Unlike some states that award an elective share at a flat rate of one-third or one-half of the estate, Virginia courts calculate the elective share on a sliding scale based on the length of the marriage.
- A decedent cannot include all property in her will. These non-probate assets will pass to a beneficiary automatically. For example, if the decedent put any property in trust before her death, the trustee is responsible for distributing the trust to the beneficiary. If the decedent owned a life insurance policy, the insurance company will pay the proceeds to the beneficiary upon receipt of a death certificate. Any changes must be made with the life insurance company, and any provisions in the will amending the policy beneficiary are void.
Finally, joint property passes to surviving owners when one owner dies. If the decedent owned real estate with two siblings, the siblings would each inherit half of the decedent's one-third share of the property.
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