Out Of State Wills

Out-of-State Wills in Virginia

Updated for 2022

If you have recently moved to Virginia, you might be relieved to know that your last will and testament from another state is valid in the state of Virginia. However, even though your will remains valid that might not be enough.

There are significant benefits from having your out-of-state will be updated by a Virginia estate planning attorney. Your attorney can help you take advantage of specific Virginia laws. First, let’s look at some of the reasons having an out-of-state will might not be the best idea.

  • Personal Representative – Your named personal representative or estate executor probably did not relocate along with you. Most people, or testators, when having a will, trust, or other estate planning documents prepared, name a loved one who lives fairly close to them as executor or personal representative. This is simply a logistical matter. You would not want to name someone who lives a great distance from you, as that person would have to travel to where you live in order to take care of the duties which accompany the title. So, let’s say you just moved from California to Virginia. Will your California executor or personal representative be able to travel to Virginia in the event of your death or incapacitation?
  • Marital Property Ownership – Where you lived prior to moving to Virginia could have very different state laws relating to marital property ownership. As an example, if your will was executed in a community property state, and you move to an equitable distribution state (or vice-versa), you may need to change your will. Virginia is an equitable distribution state, rather than a community property state.
  • Taxes – State inheritance taxes and estate taxes differ greatly from state to state.
  • Probate – The manner in which your will is admitted into probate is different from one state to the next. This means that even if your will is valid in your prior state of residence, your beneficiaries may have to comply with Virginia laws as far as the probate process is concerned. The will may even be probated in the circuit court in the county or city where you lived at the time of death. At times, your probate process is tougher if the will did not have a self-proving affidavit. So, while not necessarily invalid, probate can be a more difficult process without a self-proving affidavit.
  • Property Management – The property management options for minor beneficiaries can vary from one state to the next.
  • Holographic Wills – Holographic or hand-written wills are valid in a few states, but not all (holographic wills are valid in Virginia only if two people can later validate your signature on the will).

As with most states, if intestacy (dying without a will) occurs, the distribution of your estate becomes problematic—to say the least. However, the intestate laws for those who die without a will do vary from state to state. This means how the state of Virginia chooses to distribute your estate could be significantly different from how your prior state might distribute your assets absent a will.

What are the Requirements for a Virginia Will?

You must be 18 or older to create a will in the state of Virginia, and you must be mentally competent to do so. If you are not of sound mind, due to your age, sickness, mental incapacity, or other similar reason, the state of Virginia does not allow you to create a will. Your will must be in writing and must be signed by you, or by another person who is in your presence, and under your direction. Your will must also be voluntary and of your free will; there cannot be any evidence of duress or coercion when a will is being created or executed. A will made under pressure or coercion is not valid in Virginia.

Oral wills, which are valid in a few states, are not valid in Virginia. Finally, you must have at least two witnesses present when you sign your will, and these two witnesses must sign your will in front of you to prove its validity.

Why Should I Change My Out-of-State Will After Moving to Virginia?

One of the best reasons for updating your out-of-state will in Virginia is that Virginia no longer has an estate tax or inheritance tax. Prior to July 1, 2007, Virginia did have an estate tax, which was equal to the federal credit for state death  .

However, that estate tax law was repealed. This could bring significant benefits to your beneficiaries, particularly if your “old” state did have an inheritance tax. In any case, the best course of action is to speak to an experienced Virginia estate planning attorney who can help you make any necessary changes to update your current estate plan.

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