While no one likes to think about their death (hopefully at some distant time) the uncertainty of life and death makes just in case planning critical for everyone. A Will is a great tool to use when preparing your estate and your assets for what will happen to them upon your death. Consulting with an experienced estate planning attorney can help you create a valid Will. But what happens if you want a Will but don’t have the time or money to seek out an attorney? Can you still protect and achieve your wishes?
A Valid Will According to Virginia State Law
Under Virginia State law, you may create what is called a “holographic” Will. This is a Will that is completely handwritten and signed by the individual without the presence of any official witnesses. In other words, you can write down your wishes concerning your estate including who you want to receive which assets, and then sign it. Though they are very easy to create, as you might imagine there are many reasons why everyone doesn’t use a holographic Will. Note that using a typewriter or a computer to draft this kind of Will is not valid–a holographic Will in Virginia must be entirely handwritten by the testator and signed by him or her. If you use a software program or just type up a document you want to be your Will you need to use certain legal formalities to include having the signing be witnessed by two individuals not related to you or benefiting from the Will. I had a client come in with her own homemade Will all nicely typed up and she proudly told me she even had it notarized. Unfortunately I had to tell her the bad news that a Notary was not required but witnesses were. Her document was not a valid Will in Virginia. The good news was we were able to correct that. Had she died with that “Will” in place it would not have been approved for probate by the court.
The Probate Process
In order for a Will to be used to honor your wishes after death, it generally must go through a legal process known as probate. The purpose of the probate process is to have a court supervise the timely and proper administration of the estate to include ensuring the decedent’s property is properly distributed to the right recipients, debts and taxes are paid, and the wishes of the decedent are carried out to the extent possible. The starting point to the probate process is for a court to determine the validity of the Will.
Wills that are drafted by attorneys are much more likely to pass through the process without much issue. On the other hand holographic Wills, by necessity, will require the probate court to conduct further investigation, which can delay the execution of your Will and cost those involved more money.
Proving a Valid Will
Although the signing of the Will does not need to be witnessed, there must be at least two disinterested witnesses to prove that it is authentic. In other words, in addition to being signed by the individual creating the Will (the testator), two people must be able to confirm that it is in that person’s handwriting. Although not necessary, it is often wise to have at least two people witness the signing of the Will and have them sign the bottom of each page.
For a Will to be valid, the individual creating it must understand what they are doing and the consequences that it implies. Unfortunately, without the assistance of an attorney who is assumed to have determined that the individual is of sound mind, those who are left out of the Will often tend to contest its validity, claiming that the individual was not of sound mind, or did not understand the consequences of the Will itself.
Even if there is absolutely no legitimacy to these claims, it is still likely that the Will may end up in probate for a long time – possibly even years. If a holographic Will or other type of “do it yourself” Will is not accepted by the probate court the estate is considered to be intestate–as if the decedent died without a Will–and the Virginia laws related to who receives property control even if that conflicts with the intentions of the decedent in the invalid Will.
Reilly Law, PLC Can Help
Even though they can be legally sufficient, using a holographic Will is a risky way of planning for your estate. These types of do it yourself legal documents can create additional issues of validity for your loved ones, often causing them to wait longer periods of time and to pay more money to attorneys and the courts in the probate process. It is always a safer option to consult with an attorney who understands Wills and the probate system and knows what needs to be done. If you or a loved one is in need of a Will, Reilly Law, PLC can help. We offer an essential legal readiness package for young families and young at heart folks as well that will ensure you have a legally valid Will in place to make your wishes a reality. The package also includes valuable documents that offer a living benefit such as Durable Financial and Health Care Powers of Attorney, Living Wills/Advance Medical Directives, and Guardianship documents. To learn more about wills, estate planning, and the probate process, or to schedule a consultation, find us online or call us at 703-579-1936 today!