Roanoke Times
                 Copyright (c) 1995, Landmark Communications, Inc.

DATE: MONDAY, September 11, 1995                   TAG: 9509110020
SECTION: MONEY                    PAGE: A8   EDITION: METRO 
SOURCE: MAG POFF
DATELINE:                                 LENGTH: Medium

HOW TO DETERMINE THE VALIDITY OF A WILL

What constitutes a legal will at this date? The people in question were told that a law was passed in Virginia eight years ago requiring witnesses to verify the will. Also, what is meant by a self-proving will?

A: Neil V. Birkhoff, a specialist in estate law with the Roanoke firm of Woods, Rogers and Hazlegrove, said a will, to be legally valid in Virginia, must be in writing and must be signed by the testator (the person making the will). And, unless the will is wholly in the handwriting of the testator, the will must have been attested (signed) by at least two competent witnesses.

Although Virginia law requires that the will be attested by two witnesses, Birkhoff said, the valid execution of the will may be proved at the probate proceeding by the testimony of just one of the witnesses.

If all of the attesting witnesses are dead or are otherwise unavailable for the probate proceeding, the validity of the will may be proved by other evidence establishing that the signatures of the attesting witnesses are in the witnesses' handwriting and that the signature of the testator is in his (or her) handwriting.

If the attesting witnesses are alive and competent but living out of state, Birkhoff said, arrangements should be made to take their depositions before a notary public. Transcripts of the depositions should be presented to the clerk of the court at the probate proceeding.

If the will was totally in the testator's handwriting (a holographic will), Birkhoff said, two disinterested witnesses must be found who can testify at the probate proceeding that the will was in the testator's handwriting. If possible, the two witnesses should not be related to the testator.

Birkhoff said the requirement of having any witnesses appear at the probate proceeding can be avoided if the will is made self-proved.

A will may, at the time of its execution or at any subsequent date, be made self-proved by the acknowledgment of the will by the testator and the attesting witnesses, made before an officer authorized to administer oaths under the laws of Virginia (generally a notary public), and evidenced by that officer's certificate attached to the will in the form as required by the Code of Virginia.

Starting up small business

Q: Is there any possible money source in the valley for someone on Social Security to start a small business? I don't need a whole lot of money, just about $5,000, if that. I have advertising set up and a following, but I need money to get my merchandise on the line. I'd like to be independent and not depend on Social Security.

A: John Jennings, who heads the Blue Ridge Center for small businesses at the Roanoke Regional Chamber of Commerce, said 90 percent or more of all small businesses get their money from traditional lending sources. That means they use banks.

Jennings said the federal Small Business Administration offers the so-called LowDoc program, in which it guarantees 90 percent of bank loans under $100,000.

Venture capitalists may be willing to underwrite a small new industry that has promise of growing larger and hiring workers from the community, but he knows of no special group that will underwrite a home business supporting one person.

He suggested that you approach a bank to see if you qualify for a small loan with guarantees by the Small Business Administration. You must have a business plan showing how you will be able to pay back the borrowed money from your new business.

Defining absolute trust

Q: What exactly is an absolute trust? Does it protect one's property from all litigation, as I have heard?

A: J. Lee Osborne, a specialist in wills and estates with the Roanoke law firm of Carter, Brown & Osborne, is not familiar with the term absolute trust. He said some people might use the term in connection with irrevocable trusts, which people use to give their money away.

He said it is difficult under Virginia law to protect your assets from all creditors and, at the same time, maintain control over your money. He said some people, in order to avoid creditors, set up trusts in foreign countries, such as the Cayman Islands. It is difficult to enforce a judgment against assets held in some countries overseas.