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The Law Blog
A Last Will and Testament, often simply referred to as a Will, is a legal document that allows you to communicate your wishes for after your death. These wishes include who should receive what assets of yours, who should be in charge of administering your assets and estate, what should be done with your body (burial or cremation), and who should any minor children live with.
The person who establishes a Will is called the Testator (male) or the Testatrix (female). The person who receives your assets is called your Beneficiary. The person who you appoint to care for your minor children is called the Guardian. The person that you appoint to be in charge to carry out all of your wishes is your Executor (male) or Executrix (female). In Virginia, your Executor/Executrix must be a Virginia resident or you must have a Virginia resident that serves with your Executor/Executrix.
A Last Will and Testament is not legally binding until you have died. Prior to your death, so long as you are competent, you may amend or change your Will at any time and as often as you like. You can have an amendment to you Will prepared, which is called a Codicil, or you can have a new Will prepared that takes that place of your old Will.
In order to sign a valid Will, you must be over the age of 18 years and of sound mind (which means that you must be competent). Also, you must not be under any duress to sign your Will. This means that no one can be forcing or coercing you to enter into the Will. Finally, you must understand the nature of your assets and who you are leaving them to. A Will must also be signed by two witnesses and a Notary Public in order to be valid.
Joint Ownership means that you own property together with one or more other persons. Because these kinds of assets are not in your name alone, the distribution after your death is usually not controlled by your Last Will and Testament or your Trust, but instead by operation of law. This means that, upon your death, these assets will instantly and automatically belong to the other person or persons who jointly own them with you.
There are three ways that two or more people may own one property at the same time:
1. Joint Tenants with Rights of Survivorship
2. Tenants by the Entirety
3. Tenants in Common
Joint Tenants with Rights of Survivorship is the form of joint ownership which specifies that when one owner dies, the surviving owner or owners automatically receive the deceased owner’s share. For example, a mother may decide to add her daughter to her bank account and designate ownership as Joint Tenants with Rights of Survivorship. While the mother is alive, both mother and daughter own the account equally and either may transact business alone. If mother passes away, the bank account remains owned only by the daughter.
Tenants by the Entirety is a form of ownership available in Virginia only to married couples. Tenancy by the Entirety means that each owner has an undivided interest in the whole asset. Neither owner may sell, transfer, or encumber the asset alone. This form of ownership requires the signature of all the owners to sell or gift. Traditionally, husbands and wives own property jointly in this manner, particularly real estate. One very useful characteristic of tenancy by the entirety is that if one of the co-owners loses a civil lawsuit resulting in a judgment against him, property held as a tenancy by the entirety is not available to the judgment creditor. By statute, Virginia law also allows ownership of personal property, for example, bank accounts, as a tenancy by the entirety. When one spouse dies, the other spouse becomes the sole owner of the property, without the need to go through probate.