Virginia Estate Planning: Wills, Trusts, and Probate

Estate planning in Virginia rests on a small set of documents that decide who receives your property, who manages it, and who acts for you if you cannot act for yourself. The main tools are a will, a revocable living trust for some people, a durable power of attorney, and an advance medical directive. This reference explains what each document does under Virginia law, what makes a will valid, how property passes when there is no will, how estates move through the circuit court, and how state taxes apply. It orients you to the subject; the individual procedures each have their own article.

What estate planning covers in Virginia

Estate planning is the process of arranging, in advance, how your property and personal affairs are handled at death or during incapacity. In Virginia the subject breaks into two parts. The first is what happens to your property after death, which is governed mainly by Title 64.2 of the Code of Virginia, “Wills, Trusts, and Fiduciaries.” The second is who speaks for you while you are alive but unable to decide for yourself, which is handled through powers of attorney and advance medical directives.

A plan can be simple or detailed. For many Virginians a will, a power of attorney, and an advance directive cover the ground. Larger or more complicated situations, such as blended families, minor children, business interests, or property in more than one state, may call for a trust or additional documents. The point of planning is to replace the default rules the state applies with choices of your own, and to name the people you trust to carry them out.

What estate planning does not do is avoid probate automatically or eliminate every tax. Those outcomes depend on how assets are titled and which documents are used. The sections below describe the building blocks and point to the state rules that govern each one.

The core estate planning documents

A handful of documents do most of the work in a Virginia estate plan. Each has a defined legal role.

A will is the written document that directs who receives your property and names an executor (called a personal representative), the person who gathers the estate, pays debts, and distributes what remains. A will takes effect only at death and only after it is admitted to probate.

A revocable living trust is an arrangement in which you transfer assets to a trust during life, manage them as trustee, and name a successor trustee to take over at incapacity or death. Property titled in a living trust passes under the trust’s terms without probate. A trust does not replace a will; people who use a trust still sign a short “pour-over” will to catch anything left outside it.

A durable power of attorney names an agent to handle financial and legal matters if you cannot. “Durable” means the authority continues after you become incapacitated, which is the whole reason to sign one.

An advance medical directive appoints a health care agent and records your wishes about treatment if you cannot make or communicate medical decisions.

Two terms recur throughout. A beneficiary is a person or organization named to receive property. Intestate describes an estate with no valid will, where state law supplies the distribution.

What makes a Virginia will valid

Virginia sets specific formalities for a will, and a document that misses them can be denied probate. The will-maker (the testator) must be at least 18 and of sound mind. Under Va. Code § 64.2-403, a will must be in writing and signed by the testator, or by another person in the testator’s presence and at the testator’s direction, in a way that shows the name is meant as a signature.

For a typed or printed will, that statute requires the signature to be made or acknowledged in the presence of at least two competent witnesses who are present at the same time, and who then sign the will in the testator’s presence. No particular form of attestation wording is required. Virginia also recognizes a handwritten will: under the same section, a will wholly in the testator’s handwriting and signed by the testator is valid without witnesses, provided the handwriting and signature are later proved by at least two disinterested witnesses.

Witnesses can also sign a self-proving affidavit before a notary at the time of signing. That affidavit lets the circuit court admit the will without tracking down the witnesses later to confirm the signatures. A will can be changed by a later document called a codicil, or replaced entirely by a new will; the new document should state that it revokes earlier ones.

When there is no will: intestate succession

If a Virginian dies without a valid will, the estate is “intestate” and passes under a fixed statutory order rather than by choice. The scheme for real estate is set by Va. Code § 64.2-200, and personal property follows a parallel rule in the sections that follow it.

The surviving spouse is central to the order. Under § 64.2-200, the entire estate passes to the surviving spouse unless the decedent left children or their descendants who are not also children of that spouse. In that blended-family situation, two-thirds of the estate passes to the decedent’s descendants and one-third to the surviving spouse. If there is no surviving spouse, the estate passes to the decedent’s children and their descendants; if none, to the parents; then to siblings and their descendants; and outward to more distant kin. Only if no heir can be found does the property go to the Commonwealth.

A separate protection applies even when there is a will: a surviving spouse who is left out or left little can claim an elective share of an augmented estate under Virginia law, so a spouse generally cannot be fully disinherited.

Probate and administering an estate

Probate is the court process that proves a will and authorizes someone to settle the estate. Virginia has no separate probate court; the work is done in the circuit court for the county or city where the person lived, as explained by the Virginia Judicial System’s self-help probate guide. Under Va. Code § 64.2-443, the circuit courts have jurisdiction over the probate of wills, and a will is offered in the county or city where the decedent had a known place of residence.

In practice the clerk of the circuit court, not a judge, usually handles probate. The executor named in the will qualifies before the clerk, takes an oath, sometimes posts a bond, and receives a certificate of qualification that proves authority to act. The personal representative then files an inventory of estate assets, pays valid debts and taxes, and later files accountings with the local Commissioner of Accounts, an officer who reviews estate administration. The Virginia Court Clerks’ Association sets out the sequence in its printable guide, Probate in Virginia. Real estate generally passes directly to the heirs or devisees at death, while the personal representative administers the remaining assets.

Not every estate needs full administration. Under Va. Code § 64.2-601, a person holding a “small asset” must release it to the decedent’s successor on a signed affidavit stating that the value of the entire personal probate estate is $75,000 or less, that at least 60 days have passed since the death, and that no personal representative has been appointed. A related provision, Va. Code § 64.2-602, lets a holder pay or deliver a small asset worth $35,000 or less without an affidavit. These small-estate tools let modest estates skip formal qualification.

Planning for incapacity: powers of attorney and directives

Estate planning is not only about death. Two documents let you choose who acts for you if you become unable to manage your own affairs, which keeps decisions out of a court-supervised guardianship or conservatorship.

A durable power of attorney covers financial and legal matters: paying bills, managing accounts, handling real estate, and dealing with government benefits. The authority can begin immediately or be written to take effect only on incapacity, and because it is durable it survives the loss of capacity. The agent owes a fiduciary duty to act in your interest.

Health care is handled by a separate document. Virginia’s Health Care Decisions Act supplies a suggested combined form in Va. Code § 54.1-2984 that lets you appoint a health care agent and state your wishes about treatment, including life-prolonging procedures if you have a terminal condition. Using the statutory form is optional, but the document must be signed and witnessed to take effect. An advance directive can be revoked at any time by a signed writing, by destroying it, or by an oral statement of intent to revoke.

Taxes on a Virginia estate

Virginia estates face fewer state taxes than many people expect. According to the Virginia Department of Taxation, the Commonwealth had an estate tax tied to the old federal credit for state death taxes, but when Congress eliminated that credit the Virginia estate tax was effectively repealed for deaths on or after July 1, 2007. Virginia also has no inheritance tax, so beneficiaries do not owe a state tax simply for receiving an inheritance.

Two other taxes can still apply. The federal estate tax reaches only estates above a high exemption that changes over time, so it affects a small fraction of estates. Separately, income earned by an estate or trust during administration, such as interest or rent collected after death, can be subject to Virginia fiduciary income tax, which the personal representative reports on a fiduciary return. Because both figures change, the personal representative confirms current thresholds with the taxing authority for the year of death.

Specific procedures and topics