Virginia State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

Virginia Code Annotated
Probate jurisdiction rests with the Circuit Court
Probate laws are primarily under Title 64.2

Minimum age requirement to:

Distribute property by will: 18 (Section 64.2-1900)
Which minor gets property: 18 to 21

Holographic will recognized (Section 64.2-447)

State taxes:

Estate tax: Equal to federal credit for state death taxes (Section 58.1-361 to 58.1-363)
State gift tax:Inheritance tax: No inheritance tax (Section 58.1-361 to 58.1-363)
- No state gift tax (Section 58.1-361 to 58.1-363)
- Anatomical Gift Act (Section 32.1-291.11)
Inheritance tax: No inheritance tax (Section 58.1-361 to 58.1-363)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section 64.2-419 to 64.2-422)

No surviving spouse, but there are surviving children:
- All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
Surviving spouse and
- Children of surviving spouse:
  - All of your estate will pass to your spouse
  - Children not of the surviving spouse (for example your children from a previous marriage):
    - one-third (1/3) to surviving spouse, and
    - the other two-thirds (2/3), split equally among the surviving children or grandchildren according to their per stirpes share
    - No children and both of your parents of deceased:
      - All of your estate will pass to your spouse
    - No children, but at least one of your parents survives you:
      - All of your estate will pass to your spouse
At least one parent survives you, but no surviving spouse or children:
- All of your estate will pass to your surviving parents equally
No spouse, children, or parents:
- Siblings (brothers and sisters) equally or their children according to their per stirpes share. If none, then one-half (1/2) to maternal grandparents and their children according to their per stirpes share (or maternal next of kin), and the other one-half (1/2) to paternal grandparents and their children according to their per stirpes share (or paternal next of kin)

Who must be named as a beneficiary in your will:

Surviving spouse (Section 64.2-422), andChildren, born or adopted (Section 64.2-420)
- Surviving spouse must be given:
  - If there are no children, then the surviving spouse gets one-half (1/2) of your augmented estate (Section 64.2-317)
  - If there is at least one surviving child, then the surviving spouse gets one-third (1/3) of your augmented estate (Section 64.2-317)
Children, born or adopted (Section 64.2-420)

Effects of changes in your marital status on your will:

You are divorced from the surviving spouse:
- Revokes will as to divorced spouse (Section 64.2-412)
You get married without changing your will that does not provide for your new spouse:
- Does not revoke the will and spouse is still be entitled to shares under state intestate law (Section 64.2-412)

Out of state executors: Must post bond (but bond without a guarantee is allowed) and appoint in-state agent to accept legal papers (Section 64.2-426)

Witnesses:

Minimum number of witnesses required: Two (Section 64.2-403)
Are witnesses allowed to be beneficiaries?: No (Section 64.2-403)
Requirements to be a witness, witnesses must:
- be at least 18 years of age, and
- not be related to you by blood or marriage

Property ownership (Sections 55-20.1):

Common law state
Jointly held real estate is presumed to be held as tenancy in common, unless title expressly and clearly creates a joint tenancy with right of survivorship
Bank account deposits held jointly are payable to any survivor named in the bank account, unless there is clear evidence that the deposit is payable only to a specified survivor
Tenancy by the entirety and tenancy in common are recognized in this state
Joint tenancy only recognized if expressly and clearly stated right of survivorship

Other types of wills:

Self-proving wills recognized (Section 64.2-452-64.2-453)
Living will: Advance Medical Directive (Section 54.1-2989.1) requires a certification from you attending physicians that you are in a terminal condition and your death will result without using life-sustaining procedures
Durable Power of Attorney (Sections 64.2-1600 to 64.2-1642)