What You Cannot Add to a Virginia Will and What It Cannot Do

close up of last will and testament documentWhile your last Will can ensure your descendants receive personal effects and assets on your passing and assign a guardian for minor children, there are limits to what it can achieve.

What a Will Cannot Be Used for in Virginia

A professional estate lawyer in Virginia can guide you further, but these are some of the things that a Will cannot be used for:

Pass Real Estate Ownership Where a Deed Provides for Right of Survivorship

Specific terminologies in a deed for a property can veto it from provisions in your Will. So, for instance, if your deed states that ownership interest includes the ‘right of survivorship,’ it means if one tenant dies, the remaining interest is legally transferred to surviving tenants. You cannot change this even if your Will says it should be changed.

Remove Designated Beneficiaries

You cannot remove designated life insurance and “Pay on Death” beneficiaries for saving, checking, or investment accounts by requesting it in your Will. These assets are automatically transferred to beneficiaries on your passing during probate. Any provisions in your Will that contradict this are void.

Hide Assets That Pass Through Your Will

For any assets passing through your Will, information about those assets must be disclosed to the probate court and is publicly available when (and if) there is a probate event related to your estate. Your executor has to prepare and file a complete inventory of your property (personal and real estate) if it passes through your Will, including distribution requirements.  An experienced attorney can help you figure out how to keep your assets out of probate so that they pass to your beneficiaries outside the Will and, therefore, outside the public eye.

Assign a Guardian to Minor Children Who Isn’t Their Parent

As per Virginia law, you cannot assign a separate guardian to minor children if the other parent is alive unless their parental rights are legally revoked because of their inability to provide care.  You can, however, appoint a successor guardian for your children in the event that their other parent does not survive you.

Avoid or Eliminate Debts

As per Virginia law, your executor has to pay off all of your creditors before other Will bequests can be fulfilled. In some cases, personal property and assets may be sold off to repay debts. Your Will cannot say otherwise. However, your executor can contest unsubstantiated or invalid claims on your behalf. If they cannot prove the debt, it can be eliminated.

What You Cannot Add to a Will

As per Virginia law, you cannot add the following items or provisions to a Will:

Property That Is Not Under Your Name

You cannot include a provision for property in a Will that isn’t owned by you. This also includes property to be distributed to beneficiaries via a trust that bypasses probate and joint property. The latter automatically transfers to the surviving partner on your passing.

A Designated Executor Who Is a Minor Child at the Time of Writing

Even if your children are close to turning 18 years of age, you cannot name them as an Executor in your Will until they are, in fact, 18 years or older.

Provisions Regarding Digital Assets

Your social media accounts contain personal pictures, ideas, playlists, thoughts, and other personal items that are valuable for your loved ones. You can specify what should happen to these digital assets after you pass away through your digital service provider. Facebook and Google, for instance, allow account holders to outline the steps they can take with their accounts when they pass away.

Provisions That Leave Assets to Pets

Since pets are categorized as property in Virginia, they cannot own property themselves legally. Talk to an experienced estate lawyer proficient in Virginia estate and trust law for setting a separate pet trust for your pets.

Provisions for Illegal Requests or Illegally Obtained Assets

Your Will cannot address asset distribution of illegally-acquired property. It also cannot contain instructions for your executor, personal representative, or any other individual to make illegal requests.

Ensure your loved ones are cared for with a Will that can pass the probate process. Make sure your Will is ironclad by hiring an experienced Virginia estate planning and probate attorney, who can provide you with comprehensive guidance on how to avoid probate, how to otherwise use a Will, and to determine what other options for estate planning may best serve your interests.

Need Professional Help to Prepare Your Will or Estate Plan? The Law Office of Patricia E. Tichenor Is Here to Help

At The Law Office of Patricia E. Tichenor, P.L.L.C., we provide more than just legal advice. Our clients deal directly with a principal attorney rather than assistants. We provide virtual meetings, home visits, and other options to facilitate your access to an attorney who will go over your specific questions and needs.

All consultations are free of charge, because we believe in taking a personal approach to each interaction and use innovative solutions that can solve complex legal issues. We prefer to work with clients who want to work with us and feel confident based on our consultation time that the Law Office of Patricia E. Tichenor, P.L.L.C. is the best fit for them.

Our dedicated legal team will help you find the best solutions for estate planning issues and discuss viable options to ensure your beneficiaries are taken care of. Schedule your free consultation to talk through your options.