Virginia law permits individuals to deposit, or “lodge," an original last will and testament with the clerk of the circuit court for safekeeping during the testator’s lifetime. This practice is authorized under Virginia Code § 64.2-409, which allows a will to be filed with the clerk in a sealed envelope and retained until the testator’s death or request for withdrawal. While the statute was enacted with the intention of protecting important testamentary documents from loss or destruction, the modern realities of mobility, family communication gaps, and decentralized recordkeeping have rendered the practice increasingly antiquated.

This report examines the practical problems associated with lodging wills in individual Virginia circuit court clerk’s offices, particularly the inability of families to locate these wills after death and the likelihood of later drafted wills revoking the lodged will. It further discusses how population movement within Virginia and across state lines exacerbates the issue, resulting in a lodged will remaining undiscovered for decades—often until their authorized destruction. Finally, the report advocates for the creation of a statewide searchable index of lodged wills, modeled on existing public search systems maintained by the Office of the Executive Secretary of the Supreme Court of Virginia.

It is important to note that only an original will can be probated by a clerk of court, thus increasing the significance of knowing where the original wills are stored or lodged. In preparing this report, the Virginia Supreme Court Office of the Executive Secretary advised that they do not currently have a receipt code for lodged wills in a courthouse.

The Clerk of Rockingham County created this report in working with local members of the Harrisonburg-Rockingham Bar Associations who primarily focus on probate and estate matters. The Clerk of the same court can produce examples, and it is likely similar examples exist in the other 119 Circuit Court Clerk’s office, of many estates that were handled intestate, even though a will was lodged, since there is no search ability. This outcome directly conflicts with the actual will’s directives leading to what could be significant civil actions and legal matters before a court that could have been avoided.

The Rockingham Circuit Court Clerk’s office created an electronic index of wills within the land records system which allows any person the ability to review filings as with any other type of document. While this is a sealed record, if the person meets the legal authority to view or act upon that will, the lodged will then can be taken from storage and provided. In requesting the process used in other courts, it was discovered that the process often includes clerk’s offices maintaining index paper card catalogs or similar burdening the search outcomes and possibly leading to overlook or other search errors. Additionally, thought should be given to the fact that this current retention is 100 years for lodged wills. So the paper items of today will likely become brittle, discolored or illegible during that time if left in this medium.