Last Will and Testament for Married person with Minor Children
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 handwritten 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.
Execution 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.
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is revoked and superseded to the extent of such express revocation or inconsistency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 which is
in existence at the time of the testator's death, may be prepared before
or after the execution of the will, may be altered by the testator at any
time and may be 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 which 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.
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 his lifetime
upon his request in writing therefor or until the death of the testator.
Should such will be returned in the testator's lifetime as hereinbefore
provided and later returned to the clerk it shall be considered as 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 shall be applicable only
to the clerk's office of a court wherein theretofore has been entered,
by the judge or judges of such court, an order authorizing the use of its
clerk's office for such purpose. 64.1-56
