LAST WILL AND TESTAMENT

of
[TESTATOR FULL LEGAL NAME]

State of Virginia
County/City of [___]
Effective Date: [MM/DD/YYYY]

TABLE OF CONTENTS

I. Document Header
II. Definitions
III. Operative Testamentary Dispositions
IV. Testamentary Trust Terms
V. Fiduciary Appointments, Powers & Standards
VI. Risk Allocation
VII. Dispute Resolution
VIII. General Provisions
IX. Execution Block
X. Self-Proving Affidavit

I. DOCUMENT HEADER

1.1 Identification and Capacity. I, [TESTATOR FULL LEGAL NAME], residing at [TESTATOR ADDRESS], being of sound mind and over eighteen (18) years of age, hereby declare this instrument to be my Last Will and Testament (“Will”), revoking all prior wills and codicils.

1.2 Governing Law. This Will and all trusts created herein shall be construed, administered, and enforced in accordance with the laws of the Commonwealth of Virginia, including the Virginia Uniform Trust Code, Va. Code Ann. § 64.2-700 et seq.

1.3 Consideration/Recitals. This Will disposes of my probate estate and establishes a testamentary trust for the benefit of my family, as more fully set forth below.

[// GUIDANCE: Confirm testator’s domicile in VA; if testator owns real property in another state, consider ancillary probate and choice-of-law clauses.]

II. DEFINITIONS

Unless the context clearly indicates otherwise, capitalized terms have the meanings set forth below (alphabetized for ease of reference).

“Accounting Period” – Each calendar year or shorter period selected by the Trustee for fiduciary accounting purposes.

“Beneficiary” – Any person or entity entitled to receive a distribution under this Will or the Trust.

“Children” – [CHILD 1 FULL NAME, date of birth ], [CHILD 2 FULL NAME, date of birth ], and any other child of mine hereafter born or adopted who survives me.

“Executor” – The Personal Representative appointed in Section 5.1.

“HEMS” – Health, Education, Maintenance, and Support as interpreted under applicable tax regulations.

“Personal Representative” – Synonymous with “Executor” under Virginia law.

“Qualified Trustee” – An individual who is not an “Interested Trustee” or a corporate fiduciary qualified to act in Virginia.

“Survival Period” – [120] hours, or such longer period as required by Va. Code Ann. § 64.2-2201 (Uniform Simultaneous Death Act).

“Trust” – The testamentary “Family Trust” created in Article IV.

“Trustee” – The fiduciary appointed to administer the Trust, including any successor or co-trustee.

[// GUIDANCE: Add or delete defined terms to match substantive provisions.]

III. OPERATIVE TESTAMENTARY DISPOSITIONS

3.1 Revocation of Prior Instruments. I hereby revoke all prior wills, codicils, and testamentary instruments.

3.2 Family Statement. I am married to [SPOUSE FULL NAME] (“Spouse”). We have the Children listed in Section II.

3.3 Payment of Debts and Expenses. My Executor shall pay from my residuary estate all enforceable debts, last illness and funeral expenses, estate taxes, and administration costs, except debts secured by real property which may be assumed, in the Executor’s discretion.

3.4 Specific Bequests. I give the following:

a. Tangible Personal Property. All household furniture, automobiles, jewelry, artwork, and other tangible personal property to [NAME OF BENEFICIARY], if he or she survives me; otherwise to the Residuary Estate.
b. Charitable Gifts. The sum of [$____] to [CHARITY NAME & EIN], provided it qualifies as a § 501(c)(3) organization at my death.

3.5 Residuary Estate. I give all the rest, residue, and remainder of my probate estate (“Residuary Estate”) to the Trustee, IN TRUST, to be administered as set forth in Article IV.

3.6 Contingent Beneficiaries. If no Beneficiary survives me for the Survival Period, I devise my estate in equal shares, per stirpes, to my heirs at law determined under Va. Code Ann. § 64.2-200.

IV. TESTAMENTARY TRUST TERMS (“FAMILY TRUST”)

4.1 Trust Creation. Upon my death, the Trustee shall receive the Residuary Estate and hold, manage, and distribute it as a separate testamentary trust known as the “Family Trust.”

4.2 Primary Beneficiary. My Spouse shall be the primary lifetime Beneficiary.

4.3 Discretionary Distributions During Spouse’s Lifetime. The Trustee may distribute as much of the net income and principal as the Trustee, in its sole discretion, deems necessary or advisable for the Spouse’s HEMS, considering other income or resources known to the Trustee.

4.4 Termination at Spouse’s Death. Upon my Spouse’s death, the Trust shall continue for the benefit of my Children as follows:

a. Mandatory Age-Based Principal Distributions:
i. One-third (1/3) of each Child’s separate share at age [AGE 1];
ii. One-half (1/2) of the balance at age [AGE 2];
iii. The remaining balance at age [AGE 3].

b. Sprinkling Power Until Final Distribution. Until complete distribution, the Trustee may continue discretionary HEMS distributions among my Children and issue equalization adjustments at final accounting.

4.5 Early Termination. If a Child dies before receiving his or her full share, the undistributed property shall pass to that Child’s descendants per stirpes; if none, equally among the surviving Children.

4.6 Spendthrift Protection. All Trust assets shall be held subject to a spendthrift clause to the maximum extent permitted by Va. Code Ann. § 64.2-743.

4.7 Trust Duration and Rule Against Perpetuities. The Trust shall terminate no later than twenty-one (21) years after the death of the last surviving descendant of my grandparents living at my death.

[// GUIDANCE: Revise ages, percentages, and distribution standards to reflect client objectives and GST tax planning.]

V. FIDUCIARY APPOINTMENTS, POWERS & STANDARDS

5.1 Executor / Personal Representative. I appoint [EXECUTOR FULL NAME & ADDRESS] as Executor. If that individual is unable or unwilling to serve, I appoint [ALTERNATE EXECUTOR].

5.2 Trustee. I appoint [TRUSTEE FULL NAME & ADDRESS] as initial Trustee of the Family Trust. If the Trustee fails to qualify, resigns, or ceases to serve, [SUCCESSOR TRUSTEE] shall serve. A Trustee may appoint an additional co-trustee or resign upon thirty (30) days’ written notice to the qualified Beneficiaries.

5.3 Guardian of Minor Children. I nominate [GUARDIAN FULL NAME & ADDRESS] as Guardian of the person and property of any minor Child.

5.4 Fiduciary Powers. In addition to powers conferred by law, including Va. Code Ann. § 64.2-105, the Trustee and Executor shall have, without court approval, all powers necessary or advisable to administer my estate and the Trust, including but not limited to:

a. Retain, sell, lease, or exchange any property;
b. Invest in assets permissible under the “Prudent Investor Rule” (Va. Code Ann. § 64.2-780 et seq.);
c. Employ professionals and delegate authority as a prudent fiduciary;
d. Make elections under tax law;
e. Divide and distribute in kind or in cash without adjustment for inequality; and
f. Execute documents and exercise all incidents of ownership in securities and LLC/partnership interests.

5.5 Fiduciary Standards. Each fiduciary shall act in good faith, in the interests of the Beneficiaries, and with reasonable care, skill, and caution, consistent with Virginia fiduciary law.

5.6 Compensation and Reimbursement. Fiduciaries shall be entitled to reasonable compensation and reimbursement of properly incurred expenses in accordance with local custom or court schedule.

VI. RISK ALLOCATION

6.1 Trustee Indemnification. The Trustee (including successors) shall be indemnified, to the fullest extent permitted by law, from the Trust assets against any claim, liability, or expense (including reasonable attorneys’ fees) arising out of fiduciary acts or omissions except those involving willful misconduct or gross negligence.

6.2 Limitation of Liability. No fiduciary shall be personally liable for any loss to the Trust or estate except to the extent resulting from the fiduciary’s willful misconduct or gross negligence; recovery, if any, shall be limited solely to Trust or estate assets, as applicable.

6.3 Bond Waiver. No fiduciary shall be required to furnish bond or other security unless a court of competent jurisdiction determines that good cause exists.

6.4 Force Majeure. A fiduciary shall not be liable for failure to perform caused by acts of God, war, pandemic, or other events beyond its reasonable control.

[// GUIDANCE: Virginia courts may nevertheless require bond if out-of-state fiduciary is appointed; consider adding optional surety language.]

VII. DISPUTE RESOLUTION

7.1 Probate Jurisdiction. All probate matters arising under this Will shall be filed and heard exclusively in the [___] Circuit Court, sitting in probate, unless transfer is required by statute.

7.2 Trust Enforcement & Injunctive Relief. The Trustee or any Beneficiary may petition the appropriate Virginia circuit court for instructions, interim relief, or injunctive orders to protect Trust assets.

7.3 Arbitration Not Available. By statute and public policy, matters subject to probate jurisdiction shall not be resolved by private arbitration; any clause purporting to mandate arbitration is hereby disclaimed.

7.4 Jury Waiver. Consistent with probate practice, the parties waive trial by jury for any dispute within the exclusive jurisdiction of the probate court.

VIII. GENERAL PROVISIONS

8.1 No-Contest Clause. Any Beneficiary who, directly or indirectly, contests this Will or any Trust created hereunder shall forfeit his or her interest, which shall be disposed of as if that Beneficiary had predeceased me without issue. Good-faith requests for court interpretation or fiduciary accounting shall not constitute a contest.

8.2 Survivorship Condition. A Beneficiary must survive me by the Survival Period to take under this Will or Trust.

8.3 Credits and Offsets. Property passing outside probate (e.g., joint tenancy, TOD, POD, life insurance) shall not be charged against a Beneficiary’s share unless expressly stated herein.

8.4 Digital Assets. My Executor may access, manage, and dispose of my digital assets and electronic communications in accordance with the Revised Uniform Fiduciary Access to Digital Assets Act as adopted in Virginia (Va. Code Ann. § 64.2-116 et seq.).

8.5 Severability. If any provision is adjudged invalid, the remaining provisions shall be given maximum effect consistent with my intent.

8.6 Headings for Convenience. Section headings are for reference only and do not affect substantive meaning.

8.7 Integration. This instrument contains the entire expression of my testamentary intent and may be amended only by a later-executed will or codicil with the formalities required by Virginia law.

8.8 Counterparts & Electronic Execution. This Will may be executed in counterparts, and electronic or remote witnessing is permissible only to the extent authorized under Va. Code Ann. § 64.2-403, as amended.

[// GUIDANCE: Remote notarization/witnessing provisions enacted during COVID-19 sunsetted; confirm current statutory authority before relying on electronic execution.]

IX. EXECUTION BLOCK

IN WITNESS WHEREOF, I, [TESTATOR FULL LEGAL NAME], have hereunto set my hand this ___ day of ____, 20__.

[TESTATOR FULL LEGAL NAME], Testator

ATTESTATION CLAUSE

Signed, published, and declared by [TESTATOR NAME] as and for his/her Last Will and Testament, in our presence, and we, at his/her request, in his/her presence and in the presence of each other, have hereunto subscribed our names as witnesses.

X. SELF-PROVING AFFIDAVIT

Commonwealth of Virginia
County/City of [___]

Before me, the undersigned authority, on this day personally appeared [TESTATOR NAME], and the witnesses, [WITNESS 1] and [WITNESS 2], all personally known to me and of lawful age, and being duly sworn, each deposes and says that the Testator executed the foregoing instrument as his/her Will, that he/she signed voluntarily and that the witnesses signed the Will as witnesses in the presence of the Testator and of each other.

Notary Public

My commission expires: _
Notary Registration No.: _

[SEAL]

[// GUIDANCE: The above self-proving affidavit substantially tracks Va. Code Ann. § 64.2-452. Attach as a separate page if local clerk’s office prefers.]

[// GUIDANCE:
1. Verify all bracketed placeholders and adjust fiduciary selections, distribution ages, tax allocations, and survivorship requirements to satisfy client objectives and current tax planning.
2. For estates liable to federal or Virginia estate tax, integrate tax apportionment clauses and consider a QTIP marital deduction trust (IRC § 2056(b)(7)).
3. Coordinate non-probate beneficiary designations (e.g., life insurance, retirement accounts) with this instrument to avoid inadvertent disinheritance or tax inefficiency.
4. Where substantial business or real property interests exist, insert special continuity or LLC membership provisions.
5. Review with local probate clerk for any county-specific formatting or margin requirements before execution.
]