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Virginia Wills and Estate Planning Q&A

March 27, 2024

Key Takeaways:

  • Virginia courts will follow what the will says even if the deceased told you something different in private.
  • Anything can be included in a will, from material assets to abstract property, such as bank accounts and businesses.
  • A Virginia estate plan needs a will, power of attorney, and an advance medical directive.
  • Working with an estate planning attorney is the best way to create a will that avoids the common pitfalls of trying to do it yourself.

When you draft a will, you can leave anything you want to anyone. A solid will virtually ensures that one’s wishes will be followed after one dies. Without a will in place, however, properly dividing up the property of the deceased can be tough. The heartbreak of knowing what your parent wanted but not having the will to prove it can be serious.

Even if you know what your deceased parent wanted more than anyone else in the world, Virginia isn’t going to care without a will in place. They will utilize their own standards for distributing assets, which probably won’t align with what the deceased would’ve wanted. Working with a lawyer for your estate planning needs is the best way to understand your rights and be prepared. Remember, if you wait until you need a will, it’ll be too late.

What’s Written Down in the Will Matters

One of our past cases involved a family of three cousins, and our client was certain that the deceased cousin left an inheritance for the other two cousins.

  • The case: Our client was told by her cousin that she would be given a portion of her estate after the cousin died.
  • The will: The will, however, specified that her assets would be given to two universities rather than the two cousins. In the state of Virginia, the courts use a standard based on a court opinion that went all the way to the state supreme court. The courts probate cases based on the will that was left, not the will that you wish was left.
  • The outcome: This, of course, means that the caretaker’s cousin doesn’t receive anything since they were not included in the will. Only the will is considered rather than anything that might have been said off the record in private.

Why Clients Choose Virginia Beach Law Group

At Virginia Beach Law Group, we have been licensed and operating in Virginia for several years and are actively practicing land law and estate planning. With our experience and expertise, we offer legal representation that allows you to pursue your case with confidence. Take a look at what some of our previous clients had to say about our services.


Taylor R. “Mr. Johnson is an amazing lawyer. He has a great personality, professional ethics, honesty, and integrity. He is extremely upfront and helpful with his advice, which steers his clients on the high road. He showed that he had our best interest in mind, especially once we were in the courtroom. Mr. Johnson not only went above and beyond but took the extra time to get the situation resolved. If anyone is looking for an amazing attorney who cares about your best interest, choose him! We couldn’t thank him enough for what he’s done!!”

Najib K. “I’ve worked with David Johnson on a personal case and have sent clients his way for years. He does amazing work and is a true professional. He is my go-to for all things estate planning-related.”

Jeff O. “Best Law Firm in the Hampton Roads area! Very diligent, professional, and friendly. David Johnson and his team are second to none, and you are sure to be a winner when you retain his firm. A total team effort with no stones left unturned. Thank you for making a difficult situation easy.”

What Is a Will?

A will is a legal written document that allows one to dictate what they want to happen to their stuff after they die. In Virginia, it can even be handwritten on a piece of notebook paper if it is signed and identified as the deceased’s handwriting by at least two people who are not beneficiaries in the will itself. Ideally, a will would be drafted with help from an estate planning attorney who has notarized and witnessed it.

What Happens if You Pass Without a Will in Virginia Beach?

If you pass away without a will, then Aunt Virginia has a plan for you, and its statutory plans for inheritance will often not match the actual desires of people involved in more unique family situations. If you and your spouse have children from previous marriages, for instance, the way the state will decide to distribute your assets after death may not coincide with your actual desires at all, favoring children born to both you and your partner rather than any stepchildren.

What Are Some Pitfalls of ‘Do-It-Yourself’ Wills?

The Google university school of law is not reliable and is full of unreliable documents. Even if you manage to find resources that aren’t outright wrong, you could find resources that are only useful in certain jurisdictions. For example, your research could turn up information about how to prepare an immaculate will, but that won’t do you much good if it’s based on California’s rules of inheritance rather than Virginia’s.

What Types of Assets Can You Put in a Will?

You can put anything and everything in a will, from real estate to household items like pots and pans and furniture. Businesses and bank accounts can also be included in a will. Anything that you own that can be passed down can be included in a will.

Can You Put a Life Insurance Policy in a Will?

You can put your life insurance policy in your will if you name your estate as the beneficiary of your policy. It is typically easier to name the beneficiaries directly in the life insurance policy, but Virginia allows any kind of monetary asset from insurance policies to stock accounts to be included in wills.

What Documents Are Vital in a Virginia Beach Estate Plan?

  • A will: This document provides a legal written record of how you want your assets to be distributed after death.
  • Power of attorney: You choose who you want to get power of attorney over your estate in the event of your death or incapacitation. Power of attorney mostly determines who will be able to make financial decisions on your behalf.
  • Advance medical directive: This includes written instructions to doctors and other medical providers that grant someone else the authority to make medical decisions on your behalf in the event you are unable to do so yourself.

What Is a Guardianship Hearing?

A guardianship hearing takes place in the event that power of attorney and an advance medical directive has not been established before a person becomes incapacitated. They are expensive, and it can take several months to determine who gets to make decisions on behalf of the incapacitated person.

If I Have a Living Trust, Do I Need to Have a Will?

Yes, it is still beneficial to have a will, even with a living trust. A will can offer details regarding power of attorney and an advance medical directive, while a living trust does not typically contain that information.

Can an Ex-Spouse Contest a Will?

In Virginia, anyone can contest a will, but an ex-spouse will likely not win their legal fight. Divorce severs a will in all instances in which the will references your spouse, but it is still safer to draft a new will after the divorce.

What Is Ademption by Extinction?

Ademption by extinction is the formal name in Virginia for directives regarding certain pieces of property in a will being disregarded because the property in question is gone. This is done by default and does not require you to amend your will.

Can I Omit My Current Spouse From My Will in Virginia?

Typically, spouses will have grounds to claim a portion of your assets in the event of your death, even if they are omitted from the will. This does not happen automatically, but they could file a motion in court.

What Happens if I Inherit a Home With a Reverse Mortgage?

If you inherit a home with a mortgage, whether it is a Reverse Mortgage or a regular Purchase Money Mortgage from when the deceased person bought the house, you will need to “do” something about that Mortgage. If it is a Reverse Mortgage, the lender will want to get paid off without much delay, and the usual way to extinguish that debt is to either sell the house to get the money needed for the payoff, or to deed it to the Lender with a Deed In Lieu of Foreclosure when the balance of the loan is greater than the value of the home. If it is a “regular” mortgage, you can either continue to pay the mortgage payments, or sell the house, pay off the loan balance, and if there’s money left over, keep it. In any case, the best thing to do is get legal help to work through the possible scenarios.

Choose an Estate Attorney That is Actively Practicing in Virginia Beach

Virginia Beach Law Group can help with your estate planning legal issues. To get started with a free case evaluation, fill out our online contact form or give us a call at 757-486-4529.

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