No one likes to think about having a Last Will and Testament drawn up, but everyone will need one at some point in time. More often than not, if you are under the age of 50 and don't have a large amount of property and valuable assets, a simple will is best for you. Later in life as you acquire more, you may want to consider additional planning.
If you choose to not have a Last Will and Testament, then the State will determine who receives your belongings when you pass. If you have any assets, property, or children, then you should have a Last Will and Testament. The Last Will and Testament can let your heirs know what you wanted to have done with your property and who should take care of your children when you are gone.
A lawyer can help you properly draft a Last Will and Testament so that it will be accepted by the probate court, saving your loved ones time and money. A Last Will and Testament done by a lawyer should have witnesses, notary seals and a self proving affidavit. All of these things help your Last Will and Testament move through he probate process more quickly, but all that is required of a Last Will and Testament in Virginia is a writing with testamentary language that is dated and signed by the testator.
There are some assets that do not pass through a Last Will and Testament. If you own a house with another person and it is titled “with rights of survivorship” then it will automatically pass to the joint owner upon your death.
If you have a bank account with a 'pay on death' clause, then it will pass automatically upon death. If you have a life insurance policy that has a stated beneficiary, then that too will pass outside of a Last Will and Testament.
Virginia Simple Will Attorneys
Most people are reluctant to talk about how the assets they’ve worked hard all their lives to acquire should be distributed after they die. People simply do not like to the discuss the possibility of death and dying. What they do not realize is that a consultation with a last will and testament lawyer at the Hampton, Virginia, Law Offices of John W. Lee, P.C., offers them the peace of mind of knowing they have provided for their loved ones in a way consistent with their own wishes. A lawyer can show them how a simple will takes away the uncertainty and worry about estate distribution.
What Is a Simple Will?
Virginia laws recognize the right of adults to control what happens to the assets they own following their death. The document by which this is accomplished is a last will and testament, which is frequently referred to as a will. A testator is the name given to someone making a will.
Individuals dying without having a valid will risk having the decision about what should be done with their assets made according to the intestacy laws of Virginia. This might not follow the wishes of the individual.
For example, if a married person dies without having a will, the person’s spouse and children share in the distribution of the estate under commonwealth intestacy laws. The fact the deceased individual frequently expressed a desire to exclude an adult child from sharing in the estate because of gifts made during the lifetime of the parent does not prevent the child from sharing in the estate. This could have been prevented had the parent gone to a Newport News attorney to have a simple will prepared containing a provision accounting for the money the child already received.
Elements and Legal Requirements of a Simple Will
A simple will usually contains the following provisions:
- Designation of a representative: The person designated in a will to be appointed as the estate representative is referred to as an executor or, in the case of a female, an executrix. Once appointed by the court, the executor or executrix has the power to gather and take control of the assets of the deceased in order to carry out the instructions left in the will.
- Creating a trust and naming a trustee: A testamentary trust is a trust created in a will. It is used when there are minor children receiving all or part of the distribution under a will. The assets going to the child are placed in a trust to be held and controlled by a trustee and used according to the instructions contained in the will.
- Designation of a guardian for minor children: Parents want to know their children will be properly cared for by someone they trust. Even though both parents might be alive when a will is prepared, an attorney would recommend adding a provision for a guardian in case of an accident in which both parents are killed.
- Distribution of assets: A simple will offers individuals the ability to have full control over how their assets are distributed after death. People wishing to leave money to charities can do so by having an attorney include a provision in their will.
Wills offer the flexibility to accomplish whatever a person wishes with regard to the distribution of wealth.
The formalities of a will are that it must be signed in the presence of two witnesses. The witnesses must then sign the document. There is no requirement that a will be signed in front of a notary, but the person making the will, known as a testator, must be at least 18 years of age and of sound mind.
A will made in another state is valid in Virginia Beach as long as it met the requirements for a valid will in the state in which it was made. If someone moves from one state to another, it is always a good idea to have the will reviewed by an attorney to make certain it meets the state’s requirements for a valid will. Periodically reviewing a will with an attorney is a good idea in order to make certain its provisions accurately reflect the most current wishes of the individual and take into consideration all assets owned by the person.
Do Not Confuse Living Wills With Simple Wills
A living will is not the same as a simple will. Simple wills offer people a method for controlling how their assets are distributed after death. Living wills are documents by which people state their preferences for end of life decisions if they are in a coma or are suffering from other types of medical conditions preventing them from stating their wishes.
Unlike a simple will, living wills do not allow people to distribute assets after death. They do, however, offer guidance to doctors and other health care providers about a patient’s wishes when the person is unable to make them known due to physical or mental impairment.
Living Trusts and Simple Wills
A trust setup and funded during the lifetime of its maker is a living trust. Living trusts play important roles in estate planning, but they do not eliminate the need for a last will and testament.
People with living trusts might not include all the assets they own in the trust. Assets not in the trust are taken care of by the provisions of a simple will.
Making Changes to a Simple Will
Wills do not expire, but they can be changed or revoked. Physical destruction of the document is one method of revoking a will. Simple wills can also be changed or revoked through a document known as a codicil.
Written and signed with all the formalities of a last will and testament, a codicil is used to make changes or additions to an existing will. The original will continues in full force and effect, but it is altered by the terms of the codicil. Codicils are usually reserved for minor changes to a will. A Virginia Beach last will and testament lawyer might recommend preparing a new will when there are extensive changes to be made.
Why Should a Person Have a Lawyer Prepare a Will?
Failing to follow the formalities and legal requirements associated with drafting and executing a will can result in courts refusing to accept it as valid. Lawyers know the laws and stay up to date on changes that could affect a will’s validity.
Speak to a Hampton Estate Planning Attorney for Advice and Guidance
A last will and testament lawyer at the Hampton Roads Law Offices of John W. Lee, P.C., has the legal knowledge and the experience to create a simple will that distributes a person’s estate according to the individual’s wishes. Find out more about what they do by calling them today at (757) 896-0868 to schedule a free and confidential initial consultation with a lawyer.
We have four convenient Hampton Roads locations in Virginia Beach, Hampton, Chesapeake and Newport News servicing the surrounding cities of Norfolk, Portsmouth, Suffolk, Smithfield, Poquoson and Williamsburg and the York, James City and Gloucester counties.