Disclaimer: This information is for educational purposes only and does not constitute legal advice.
Detailed Answer
Virginia’s Will Execution Requirements
Under Virginia law, a valid will must meet strict formalities. Code § 64.2-403 requires that the testator sign or acknowledge the will in the presence of two credible witnesses. Those witnesses must also sign the document in the testator’s presence. Virginia does not recognize holographic or unwitnessed wills.
Role of Notarization and Self-Proving Affidavits
Notarization alone does not satisfy the witnessing requirement. However, a notarized self-proving affidavit under Code § 64.2-418 streamlines probate by admitting the will without live witness testimony. If the will lacks a self-proving affidavit but has two valid witnesses alive and available, you can still probate it by offering witness testimony at a probate hearing.
When a Will Is Unwitnessed or Missing Signatures
If the will has no valid witness signatures, it fails to meet Code § 64.2-403 and cannot be admitted to probate as a will. You cannot retroactively add witnesses or notarize the document after the testator’s death.
Alternatives When Probate Fails
- Intestate Administration: If the document is invalid, assets pass by intestacy. Under Code § 64.2-640, you may petition the court for letters of administration to distribute assets according to Virginia’s intestacy rules.
- Muniment of Title: Virginia allows admission of a validly executed will as a muniment of title to clear real estate title. But the will still must comply with execution formalities (Code § 64.2-653).
Helpful Hints
- Locate any potential witnesses who saw the testator sign or acknowledge the will.
- Gather any drafts, notes, or correspondence that prove the testator’s intent.
- Review bank, brokerage, or insurance beneficiary designations—those assets may pass outside probate.
- Consider informal settlement agreements with heirs if the will is invalid but family consensus exists.
- Consult a probate attorney early to explore intestacy administration or alternative dispute resolution.