Virginia Estate Planning Considerations
Common Law State
Virginia is a Common Law State, which means the rules governing the ownership, division, and inheritance of income and property acquired by a husband or wife during their marriage holds that subject to various qualifications, each spouse owns and has complete control over his or her income and property.
Last Will and Testament
The minimum age of a person competent to make a will is 18 (or an emancipated minor). The number of witnesses necessary to execute a will is two.
The custodial arrangement terminates when:
- The minor child reaches age 18 for custodial transfers made by irrevocable lifetime gift, will, or trust, or exercise of a power of appointment (donor may extend the terminating age to 25 under certain circumstances).
- The minor child reaches the age of 18 concerning other custodial transfers.
- The minor child dies.
Dying without a Last Will, the Virginia Laws of Intestacy.
The estate goes to the surviving spouse, as follows:
- If there are no children or descendants, —100% of the estate
- If all children and surviving descendants are also children and descendants of the spouse, —100% of the estate
- If one or more of the surviving children or descendants are not also children or descendants of the surviving spouse—one‐third of the estate
If there is no surviving spouse, or if a portion of the estate does not go to the spouse:
- 100% to surviving children and descendants (see Va. Code §64.2‐202)
If there is no surviving spouse or descendant:
- 100% to surviving parent or parents equally
If there is no surviving spouse, descendant, or parent:
- 100% to the decedent’s siblings and their descendants (see Va. Code §64.2‐202)
If none of the above:
- Intestacy laws outline further distribution steps to the level of “kindred” (grandparents and related individuals). See Va. Code §64.2‐200A.5., B.
- If no legally described recipient can be found, intestate assets go to the Commonwealth of Virginia.
Virginia follows the Uniform Fiduciary Access to Digital Assets Act to ensure that testators can retain control of their digital property and plan for its ultimate disposition.
Virginia does not impose an inheritance tax.
Credit Estate Tax
Virginia imposes an estate tax equal to the maximum credit allowed under the federal tax code for paid state estate and inheritance taxes under I.R.C. Sec. 2011. However, the current federal tax code does not permit a credit for paid state estate or inheritance taxes. Therefore, there is no credit estate tax in effect at this time.
Generation-Skipping Transfer Tax (G.S.T. Tax)
Virginia imposes a G.S.T. tax equal to the maximum credit allowed under I.R.C. Sec. 2604 for paid state G.S.T. tax. However, the current federal tax code does not permit a credit for paid state G.S.T. tax. Therefore, there is no current G.S.T. tax.
Virginia does not impose a gift tax.