Estate Planning in Virginia

Married with children (same marriage)

Your spouse inherits the entire estate when all children are also children of the surviving spouse.

Married with children from a prior relationship

Your spouse receives one-third of the estate. The remaining two-thirds passes to the children and their descendants. This applies whenever any surviving child (or descendant) is not also a child (or descendant) of the surviving spouse.

Married, no children

Your spouse inherits the entire estate. If parents survive but there are no children, the spouse still inherits everything under intestacy (parents do not share under Virginia intestacy when a spouse survives).

Single with children

Your children inherit everything equally by representation.

Single, no children

Your parents inherit equally, or the surviving parent inherits everything. If no parents survive, siblings inherit. The chain continues through the kindred of each parent's side. If no kindred of either parent survives, the estate may pass to the kindred of the decedent's most recent predeceased spouse.

What makes a will valid

A formal (attested) will must be in writing, signed by the testator, and subscribed by at least two competent witnesses who are present at the same time and who sign in the testator's presence. A holographic will must be entirely in the testator's handwriting and signed — proved by two disinterested witnesses to the handwriting.

What people think

That witnesses can sign at different times, or that notarization replaces the witness requirement.

What actually happens

Virginia requires both witnesses to be present simultaneously when the testator signs or acknowledges the will. Sequential witnessing — where one witness signs and then leaves before the second arrives — invalidates the will. Notarization is irrelevant to will validity and matters only for the self-proving affidavit.

Common failure

Having witnesses sign at different times without both being present simultaneously. This is the most common execution error specific to Virginia, because many other states allow sequential witnessing.

When a trust is better

When avoiding the Commissioner of Accounts audit is a priority (trust assets bypass this process), when privacy matters, when managing property in multiple states, or when the augmented estate elective share calculation needs to be managed strategically.

Execution checklist

1. Sign the will with both witnesses present at the same time
2. Have both witnesses sign in your presence — do not allow sequential signing
3. Execute a self-proving affidavit (notarized) at the same time
4. If using a holographic will, write the entire document in your own handwriting and sign it
5. Store the original securely — Virginia allows lodging wills with the Circuit Court Clerk for safekeeping ($5 fee)

What it does

Grants authority to a named agent to manage financial, legal, and property affairs on your behalf.

Key rule

Virginia adopted the Uniform Power of Attorney Act. A durable POA must include explicit durability language stating it survives the principal's incapacity. The document must be signed and acknowledged before a notary. Virginia provides a statutory form that includes all required elements.

Real-world friction

Financial institutions in Virginia may reject POAs they consider outdated or non-standard. Using the Virginia statutory form and keeping the document recently executed is the most effective prevention. Virginia law provides remedies for unreasonable third-party refusal.

Common mistake

Not distinguishing between the financial POA and the healthcare advance directive. They are separate documents with entirely separate legal authority. The financial POA handles money and property; the advance directive handles medical decisions.

What it covers

Your preferences for medical treatment, end-of-life care, and the designation of a healthcare agent authorized to make medical decisions if you become unable to make or communicate your own decisions.

What's different

Virginia's Health Care Decisions Act allows a combined advance directive that includes both your treatment instructions and the designation of a healthcare agent. The directive can be executed with either two adult witnesses or notarization — either method is sufficient.

Execution requirements

Must be signed by the declarant and either witnessed by two competent adults or acknowledged before a notary. The healthcare agent should not serve as a witness. The directive should be provided to the healthcare agent and to any healthcare providers.

Common misunderstanding

Assuming that the healthcare agent's authority begins immediately upon signing. In Virginia, the agent's authority activates only when the patient becomes unable to make or communicate healthcare decisions — typically determined by the attending physician.

When required

When assets are held solely in the decedent's name without a beneficiary designation, survivorship rights, or trust.

What makes Virginia different

Virginia's probate system has two distinctive features. First, probate is handled through the Circuit Court Clerk's office, not a separate probate court, and the process is generally efficient — often completed in about 10 minutes for straightforward wills. Second, every estate is audited by a Commissioner of Accounts — a court-appointed attorney who reviews the inventory (due within 4 months of qualification) and the accounting (due within 16 months). The Commissioner ensures compliance and reports to the court. This creates accountability but also adds a layer of oversight that most states don't require.

Probate paths

What people get wrong

Assuming that probate is slow and expensive in Virginia. The probate filing itself is quick and the state probate tax ($0.10 per $100) is modest. The real timeline driver is the Commissioner of Accounts process — the 4-month inventory deadline and 16-month accounting deadline create a structured but deliberate pace that cannot be shortened.

When a trust is useful

Avoiding the Commissioner of Accounts audit process (trust assets bypass it entirely), managing the augmented estate calculation for elective share planning, maintaining privacy, managing property in multiple states, or structuring long-term distributions for minor children.

When a trust is unnecessary

Small estates under $75,000 (which can use the small estate affidavit), straightforward estates where the surviving spouse is the sole intended beneficiary and the intestacy result matches the testator's wishes, or estates where all assets already have beneficiary designations or survivorship rights.

Key mistake

Creating a trust but not retitling assets into it. Virginia's Commissioner of Accounts process applies to probate assets — unfunded trust assets still go through probate and are subject to the full audit process.

Having witnesses sign at different times

Virginia requires both witnesses to be present simultaneously when the testator signs or acknowledges the will. Many people accustomed to other states' rules — or using online templates — allow sequential witnessing, which invalidates the will in Virginia.

Not understanding the marriage-length sliding scale for the elective share

Virginia's elective share ranges from 3% of the augmented estate for marriages under one year to 50% for marriages of 15+ years. A surviving spouse in a short marriage who is disinherited may receive far less than they expect compared to states with a flat one-third elective share.

Missing Commissioner of Accounts deadlines

The inventory is due within 4 months of qualification, and the first accounting within 16 months. The Commissioner will issue a summons through the sheriff if deadlines are missed, and continued non-compliance can result in court action and personal liability.

Omitting the self-proving affidavit

Without one, witnesses must testify in person or by deposition. Virginia allows depositions for out-of-state or unavailable witnesses, but the process adds cost and delay.

Assuming a holographic will is easy to probate

A holographic will must be entirely in the testator's handwriting and requires at least two disinterested witnesses to verify the handwriting during probate. Finding these witnesses after the testator's death can be difficult.

Not using the will-lodging option

Virginia allows individuals to lodge their will with the Circuit Court Clerk for safekeeping during their lifetime ($5 fee). This prevents lost wills — a common problem that can lead to intestacy despite the testator's intentions.