1. What is a Power of Attorney?
• Virginia defines a power of attorney as a writing or other record that grants authority to
an agent to act in the place of a principal for matters concerning the personal or
business affairs of the principal.
2. What are the Different Types of Power of Attorney Documents?
• General Power of Attorney: The general power of attorney gives the agent broad power
to perform tasks for the principal.
• Springing Power of Attorney: A power of attorney is normally effective as soon as the
principal signs it unless it contains language stating that it will not go into effect until a
specified time in the future (for example, if you later become unable to handle your own
affairs). A power of attorney with this language is called a springing power of attorney.
• Limited Power of Attorney: A limited power of attorney gives the agent authority to do
only certain specific things specified in the document.
• Durable Power of Attorney: A durable power of attorney will allow the principal’s agent to
act on the principal’s behalf even if the principal is incapacitated. Prior to a revision in the
Virginia Code, no power of attorney was durable unless there was specific language
making it durable. Currently, all power of attorney documents signed after July 1, 2010,
are durable unless the document expressly provides that it is terminated by the
incapacity of the principal.
3. What is a LAST WILL AND TESTAMENT (otherwise known as a “Will”)?
• A will is a written statement signed by you setting forth how you would like your property
to be distributed after you die.
4. Who can make a will?
• Please check with your State. In Virginia, any person can make a will who is (1) at least
18 years of age and (2) mentally competent.
5. Do I need a will?
• Not everyone needs a will. However, if you own property, no matter how small of an
amount or value, a will ensures that your wishes are carried out about who receives your
property after your death. A will also allow you to appoint an executor to manage your
estate after you die and to nominate a guardian for minor or disabled children.
6. What property does a will control?
• A will controls only what is called the “probate estate.” The probate estate consists of
any property you own at the time of your death which remains after the payment of
certain debts, allowances, and expenses, with some limitations. For example, the
probate estate does not include property you own “jointly with rights of survivorship.”
This typically includes joint bank accounts and homes owned by husband and wife. The
joint owner who survives you automatically becomes the sole owner of this kind of
property. The probate estate also does not include insurance policies that name a
beneficiary. The beneficiary gets the insurance proceeds regardless of what your will
says, unless you name your estate as the sole beneficiary on the policy. The probate
estate is the only property subject to the probate process.
7. What will happen to my property if I die without a will?
• If you die without a will, Virginia has a law that directs how your property is to be
distributed, without consideration of your wishes or intent. Under the law, your property
goes to your closest relatives first. For example, if you are married at the time of your
death, everything goes to your surviving spouse (unless you had children by a prior
marriage in which case 2/3 goes to the children of the prior marriage and 1/3 goes to the
surviving spouse). If there is no surviving spouse, then everything goes to your children
or grandchildren. There are several more steps that set out increasingly distant relatives
as beneficiaries which include parents and siblings. If there are absolutely no relatives to
be found, then your property will go to the state.
8. To whom may I leave my property?
• In general, you may leave your property, or any part of it, to any person or organization
you desire. For example, you may choose to leave property to a relative, friend, or
charitable organization. However, you should be aware that, if you are married at the
time of your death, your surviving spouse may be entitled to a portion of your estate
regardless of the provisions of your will. If you choose not to name your spouse in your
will, you should consult an attorney first.
9. Where should I keep my will?
• Your will should be kept in a safe place where it can be easily found and accessed after
your death. It is a good idea to tell your executor where you keep your will. It is important
that your executor be able to access your original will document after your death
because the court requires the original document rather than a copy. If the original will
cannot be obtained, it is very difficult to have the will validated by the court.
