A last will and testament may be the only estate planning document that an individual drafts during their lifetime. The details included in a will can determine who cares for the testator’s children, who administers their estate and also the overall distribution of their property among their beneficiaries after they die.
Virginia law imposes multiple requirements on those drafting wills to help ensure their validity and to prevent undue influence and fraud. Testators preparing to create a will or update an existing estate plan need to understand what the law requires to ensure that their wills stand up under scrutiny in the Virginia probate courts.
Witnesses may play a critical role in resolving disputes about a will if there are concerns after a testator passes, and the law requires that witnesses sign most wills.
When are witnesses necessary?
Witnesses are typically a requirement for traditional printed wills and also electronic or digital wills. Testators generally need to have at least two competent adult witnesses sign the will. In the event of a dispute about the will in the future, witnesses can help validate the testator’s identity and verify their mental state at the time of the will signing.
While state law does not explicitly require disinterested witnesses, selecting people who are not beneficiaries of the estate is typically the best option. Interested witnesses can raise questions about undue influence and may increase the likelihood of a will contest after a testator dies. Virginia does not require a notary to witness a will signing.
The only time that witnesses are not necessary for the creation of a valid will is when the testator creates a holographic or entirely handwritten will. However, holographic wills are potentially subject to contests if people do not recognize the handwriting and signature of the testator. There is also the potential risk of family members failing to locate a holographic will or someone intentionally destroying or hiding the will.
Working with an estate planning attorney can help Virginia residents to better ensure that their wills align with all state requirements and adequately address their personal wishes. The presence of two witnesses at the time of document signing is a key requirement for a valid will in Virginia.