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While it is possible for a person to write his own will, the act carries with it substantial risk that the testamentary intent of the writer will fail to be carried out accurately. Several rules, many of which can involve other fields of law (such as real estate law), govern the act of leaving property that constitutes one’s estate and require an experienced and licensed professional to accurately navigate the inherent subtleties and complexities, and therefore avoid unpredictable results of probate court.
To better understand the laws pertaining to wills, it must first be understood that the laws of the Commonwealth of Virginia, as in virtually all states, do not prioritize escheat. In other words, the law strongly prefers free alienability of property and avoids having property either revert back to the Commonwealth or hang in the balance while the rightful owner is determined. Rather, the law attempts to place this property into the hands of an appropriate party as soon as feasible. A will properly prepared by a licensed attorney avoids unintended testamentary results as created by the law.
Dead Hand Control
Dead hand control is the ability of the testator to define stipulations governing the bequeathing of his property after death. This seemingly harmless and inalienable right is tempered by other rules, which can be very involved, such as the rule specified in the section immediately below. In a landmark case, Shapira v. Union National Bank 39 Ohio Misc. 28, 315 N.E.2d 825, a man willed his son a portion of his estate, but conditioned the inheritance on his son marrying a Jewish woman, whose parents were both born Jewish. The son sued, claiming that the stipulation was a violation of the Equal Protection Clause of the 14th Amendment of the Constitution. The court upheld the terms of the will since the testator was a private citizen and therefore not required to meet the constitutional standards as would be an arm of the government.
The Rule against Perpetuities
The rule against perpetuities varies by state, but in Virginia, the law provides that:
“A nonvested property interest is invalid unless:
- When the interest is created, it is certain to vest or terminate no later than twenty-one years after the death of an individual then alive; or
- The interest either vests or terminates within ninety years after its creation.”
This rule prevents property from being suspended in a state of limbo for an excessive amount of time while the conditions specified by the testator are met. The question of when and how an interest vests can involve complicated issues as well as other areas of law.
Get Legal Assistance
Few people pass at a time that is either convenient or known beforehand. Any person who wishes to divide an estate into parcels of property and leave them to specific heirs, especially to non-family members, must do so with a properly prepared will. Contact online or call the experienced estate planning attorneys at The Kamerow Law Firm, PLLC for a free and confidential consultation by calling 703-370-8088.