Like all state-specific Will laws, Virginia Will laws come with their own unique sets of rules and restrictions. Before working with a lawyer to create your Will, it’s important to be aware of what statements, claims, or promises should not or cannot be included in a legally-binding Will in the state of Virginia.
Here’s what not to include when writing a Will under Virginia estate planning laws.
1. Naming a non-parent as a minor’s guardian (if the other parent is living)
If you are separated or divorced and your minor child’s other parent is not a major part of your lives, you may think you can use your Will to name someone else as your child’s guardian if you pass away. According to the Code of Virginia, if the court deems a living parent “fit and proper” to care for the child, the parent will become the child’s guardian before any non-parents who are named in the Will.
You can, however, name someone as a standby guardian, who will assume responsibility for your minor child in the event that the child’s other parent is deceased or otherwise incapacitated at the time your Will is executed. Choosing a standby guardian for your child can be a difficult and emotional decision, and one you should consider in great detail when you are ready to create your Will.
2. Shielding your estate from the public record
Probate can be slow and expensive. “Probate” refers to the legal process for distributing property after you die that passes through your Will. Not all property will pass through your Will; however, if you proactively fill out and sign beneficiary designations forms for all of your financial accounts to allow them to be paid-out directly to your named beneficiary (beneficiaries) simply by presenting your death certificate to the financial institution holding those assets.
This is called non-probate planning, and it can also ensure protection of those assets from your creditors. Unsecured creditors like credit card companies can only file action against the assets that actually pass through the Will; however, if a Will has little or no assets (or no financial assets), then these unsecured creditors have to simply write off these debts as uncollectible.
Probate is a public record, so if you do wish to keep a section of your estate private, work with your lawyer to review which estate planning documents you need to complete your estate plan, such as a trust. A trust is another excellent way to avoid probate, especially if your beneficiaries are young children or individuals you believe are not ready to manage the inheritance you are leaving to them.
3. Avoiding debt collectors
They say the only certain things in life are death and taxes. When creating your Will in the Commonwealth of Virginia, you must include provisions that direct the payment of both from the assets which pass through your Will.
According to Virginia probate tax laws, if you do have assets passing through your Will, then your executor must use those assets to first pay any taxes you owe as well as debts before distributions to your beneficiaries.
4. Direct bequeathing of property to a pet or improper bequeathing to a person
In the Commonwealth of Virginia, pets are considered property and therefore cannot directly inherit any part of your Will. However, you can speak with your attorney about including pet trust provisions in your Will, or leaving a specific amount of money to a loved one who agrees to take your pet when you die, called a “specific bequest.” Depending on what you want to include in your estate planning, you should work with your lawyer to decide which common types of trust you want to include in addition to your Will.
You also cannot bequeath any property that does explicitly belong to you. According to Virginia estate planning law, this includes shared property with right of survivorship (but not property owned as a tenant-in-common, where each owner holds his or her own 50% interest in the property), unowned property, and illegally obtained property. An example of shared property is a house or car that you co-own with a spouse or other individual who is still living at the time of your death.
5. Overruling beneficiaries
The executor of a Will has a duty to represent the best interests of the deceased, but that does not grant them the right to overrule beneficiaries. If you have previously named someone as the “Payable on Death” beneficiary of a bank account, retirement fund or life insurance policy, those assets will not be controlled by your Will. Always make sure to confirm that those beneficiaries are still the people you intend to inherit from you, and if you know you want those assets to pass through your Will, make sure to update your designations to remove all named beneficiaries so that no one is identified, or identify “my estate” as the named beneficiary for all or a percentage of that your account that you wish to pass through your Will. If you do not take these steps, your named beneficiaries on your accounts will, in effect, overrule any contrary intentions you might have put in your Will.
Drafting your Will is a highly personal and often complex process, and what you can and cannot include in your Will varies by state. At the Law Office of Patricia E. Tichenor , P.L.L.C, we offer Virginia residents over 20 years of experience with state-specific estate planning.