5 Things a Will CANNOT Do Under Virginia Estate Planning Laws

Access to information about wills has increased exponentially through the Internet Age, yet the number of people creating them has taken a dip in recent years. According to Caring.com, an online resource for information on issues affecting older Americans, less than half of 2,400 survey respondents have executed a will or similar document. This figure for 2020 represents a 25 percent decrease from survey results in 2017 – even though around 60 percent of respondents admitted that creating a will was important because of the benefits and what it can do.

However, a topic that does not get as much attention is what a will cannot accomplish. No amount of planning can make up for the fact that a will cannot achieve certain goals, so it is crucial to understand the limitations. A Virginia estate planning attorney can advise you on your unique circumstances, but you should be aware of what a will cannot do.

1. Pass Certain Types of Ownership in Real Estate: Terminology used on a deed to real property could mean that it is not covered by the provisions of your will. The key wording to look for is when the deed states that the ownership interest is as “joint tenants with right of survivorship.” When one tenant dies, the remaining interest goes to the surviving tenants by operation of law. You cannot overcome this language by making a contrary bequest in a will.

2. Overrule Designated Beneficiaries: When you opened a checking, savings, or investment account, you may have indicated that someone would be a “Pay on Death” beneficiary upon your passing. You would also have designated a beneficiary when purchasing a life insurance policy. When you die, these assets are automatically transferred to the individual that you named on the account or policy. Any provisions in your will that contradict this arrangement will be void.

3. Sidestep Debts to Creditors: Virginia law requires your executor to pay all debts you owe to creditors before specific or general bequests can be fulfilled. The probate court may even order that your real or personal property be sold to pay off creditors. You cannot use your will to avoid paying outstanding balances or accounts that creditors can prove. However, your executor can contest any claims on the grounds that they are invalid or unsubstantiated.

4. Name a Non-Parent Guardian for Minor Children: Under Virginia’s statute on testamentary guardians, you can appoint someone to act as guardian of your minor children when you die; you cannot name another person to have custody over the child if the other parent is still alive. The exception is where the individual’s parental rights have been terminated through the legal process or if he or she is not a “fit and proper person” – as stated in the statute.
5. Keep Your Estate Matters Private: When your will goes through the probate process, your financial affairs will be public record. Your executor is required to file an inventory of your real and personal property, and the will itself includes details on how your estate is distributed. To keep these matters private, you might consider a pour over will combined with a trust.

Get More Information from a Virginia Estate Planning Lawyer

Unless you take into account what a will is unable to do, your plan could result in a result that you never intended – and possibly put your surviving loved ones in a difficult position. Our team at Shannon & Associates, P.C. will ensure your estate plan is free of errors and omissions that do not align with your intentions. Please contact our Chesapeake, VA office today to set up a consultation with one of our skilled Virginia estate planning attorneys.