The Four Ways to Write a Will and their Pros and Cons
There are several ways to make a will in Virginia. They range from handwriting your own will (known as a “holographic will”), to having an attorney draft a will for you and supervise its signing.
All wills in Virginia have three requirements in common:
The Testator (person making the will) must have the capacity to make a will (see my article on Testator Capacity in Virginia: What is Testamentary Capacity -Virginia).
The Testator must show clear intent that the document is meant to be a will.
The will must be signed by the Testator.
The other requirements peculiar to each type of will will be discussed separately.
The four types of wills in Virginia are:
a Holographic Will - this is a handwritten will
a Self-Drafted Will
a Form Will from a Legal Forms Seller such as LegalZoom
an Attorney-Drafted Will
Holographic Will
A holographic will is a will written in the handwriting of the Testator. It is recognized in Virginia by Va. Code § 64.2-403(B). For a holographic will to be effective, it must meet these two additional requirements:
The will must be entirely in the Testator’s own handwriting (no pre-printed forms).
The will must be proved by two or more disinterested witnesses.
The main benefit of this type of will is that it is free and doesn’t require any witnesses for the signing. The biggest flaw in holographic wills is that they must be proved by two “disinterested witnesses” who know the testator’s handwriting. A disinterested witness is someone who will not receive anything under the will. While a well-drafted attorney-written will can be admitted to probate without the need to bring witnesses to court, a holographic will requires that two disinterested witnesses who can recognize the testator’s handwriting and are not beneficiaries of the will appear in person, in court and testify. If two disinterested witnesses cannot be found and brought to court, then the property will be disposed of according toVirginia’s Intestacy Statute, Va. Code § 64.2-200.
Form Will from a Legal Forms Seller/Distributor
This kind of will has grown in popularity lately due to budget-friendly services like FreeWill or LegalZoom and their effective marketing campaigns. These services are relatively inexpensive and provide wills of varying quality. While these wills may be a good option for someone who would otherwise die without any will. The primary benefit of this type of will is that it is relatively inexpensive, but the rules for signing the will are strict and their application may be harsh.
The drawbacks of this type of will as compared to an attorney-drafted will are numerous. This option lacks the advice of a knowledgeable and experienced attorney to help you evaluate which legal documents are best for your particular situation and to then ensure that those documents are properly executed. A form will is inherently less customizable than an attorney-drafted will. For instance, a form will is not a good option for people with minor children, nor for people with sizable assets. Even if you have only modest assets now, you may have accrued much more by the time you pass away. You want your final wishes to be legally enforceable, which is something a form will cannot guarantee.
Attorney-Drafted Wills
Attorney-drafted wills are the safest and least stressful option. The main drawback of an attorney-drafted will is its higher cost as compared to the other options, though you can think of it as paying for insurance that your final wishes will indeed be honored.
The benefits of this type of will are that an attorney will be able to help you choose the best legal option for your specific situation and explain anything that you don’t understand throughout the process. An attorney can help you achieve your objectives by drafting a document to your specifications while meeting all of the legal requirements. The attorney will then be there to supervise the process of signing your will and answer any last-minute questions.
The biggest reason to choose an attorney to draft your will is that it gives you the best chance that your documents will be legally effective and it gives you peace of mind that there is a knowledgeable professional standing behind those documents.
Self-Drafted Will
A self-drafted will is just a will you drafted on your own.It is held to the same standards as an attorney-drafted will. This means that if you fail to follow all of the rules, the will would be a legal nullity.
The primary benefits to this type of will are that you can type it yourself, you retain the freedom to make it say whatever you wish, and it may not cost you any money to draft. You may still need to pay for a notary (a person who is officially authorized to acknowledge signatures) if the will is to be self-proved. Unlike a holographic will, the witnesses to this type of will are eligible to receive property under the will per Va. Code § 64.2-405.
The drawbacks to this type of will are that it isn't standardized and wasn't drafted by a professional who is knowledgeable about the subject, and therefore you run a much higher risk that your will could turn out to be ineffective.
Final Thoughts
Know the Risks
It is important to remember that great care must be taken, either by you (for the do-it-yourself options), or by your attorney. A will is a legal document that has very specific requirements that, if unmet, could mean that a court will treat your will as if it doesn’t exist. Dying without a will or with an inoperative will - called “dying intestate” - means that a probate judge will decide what to do with your property under Virginia’s Intestacy Statute, Va. Code § 64.2-200. This could lead to all of your property belonging to the government.
The Four Types of Wills in Virginia in a Nutshell
There are three do-it-yourself (DIY) types of wills in Virginia. The first is a holographic will, which is an entirely handwritten will which needs two disinterested witnesses who can recognize the testator’s handwriting to appear in court to testify. The second is a self-drafted will, which is a will that you write and then sign in the presence of two witnesses and a notary. The third is a form will - you purchase a blank form from a legal forms seller and fill in your information, then sign it in front of two witnesses and a notary. The DIY options have the benefit of being affordable but the serious drawback of potentially not being legally enforceable, meaning your final wishes may not be honored by the probate court. The fourth and final option in Virginia is an attorney-drafted will which is indeed the safest option. A competent attorney will tailor your will to meet all of your objectives as well as all legal requirements, ensuring that your loved ones are provided for and that your assets are treated in accordance with your final wishes.