West Virginia Wills

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Note: This is a summary of basic provisions only. It is not intended to be an all-inclusive discussion of the law of wills in West Virginia.

The legislation governing Wills and estates in West Virginia is Chapters 41-44, West Virginia Code. The sections referred to on this page are all from this statute.

Making a West Virginia Will – The Requirements

Who can make a Will?

Any person aged eighteen or older and of sound mind is legally entitled to make a West Virginia Will. §41-1-2

What are the formal requirements?

A West Virginia Will must be:

  • In writing
  • Signed by the person making it (called the testator)
  • Witnessed by two competent witnesses in the presence of the testator. §41-1-3

Can a spouse witness my West Virginia Will?

Under no circumstances should you use any person as a witness if you have given them (or even their spouse) a beneficial interest in your estate.

If any person or their spouse benefits under your West Virginia Last Will and Testament and acts as witness, then a gift to that person is void. The gift will only remain valid if that witness would have otherwise benefited from your estate under the rules of intestate succession (ie: if you had died without making a Will). If the interested witness would classify as an heir under such circumstances, then they will only receive the lower of the two amounts (the amount they would be entitled to by way of intestate succession or the gift under your Last Will and Testament). §41-2-1

A creditor of the estate, or their husband or wife, may act as a witness. §41-2-2

An executor can also act as a witness to the Will. §41-2-3. However, in most cases, the executor is the spouse and accordingly an interested witness.

Can I self-prove my West Virginia Will?

You may ask your attesting witnesses to sign affidavits stating the necessary facts as would be required of them by court testimony to establish and prove your West Virginia will. The affidavits must be subscribed before an officer authorized to administer oaths in or out of West Virginia.

On your death, your executor can produce these affidavits with your original Will. They will have the same value as if your witnesses had appeared in court and testified to the facts stated in their affidavit. Unfortunately, they cannot be admitted into evidence if your Will is contested. §41-5-15

How can I revoke my West Virginia Last Will and Testament?

  • By making a subsequent Will or codicil which expressly revokes the former;
  • By some writing declaring an intention to revoke the Will (executed in the same manner as a Will);
  • By cutting, tearing, burning, obliterating, cancelling or destroying the Will. §41-1-7

Proper cancellation begs both measures; physical destruction and express revocation in the new Will.

Can a revoked Will be revived?

Yes, if it is re-executed (signed and witnessed again) or if the testator executes a Codicil expressing an intention to revive the revoked West Virginia Will. §41-1-8

Does divorce cancel my Will?

No. A divorce or annulment of marriage only cancels (revokes) any gift or appointment of property made by the West Virginia will to your former spouse. Unless your West Virginia Last Will and Testament expressly provides otherwise, it will also terminate any appointment of your spouse as executor, trustee, conservator or guardian.

How can I provide for my pet?

The West Virginia probate code does not stipulate any requirements as to family pets. If you would like to ensure your pet is provided for after your demise, you can appoint a beneficiary to inherit your pet in your West Virginia Will.

You can also leave pecuniary legacy (money) to that beneficiary for the pet’s maintenance. However, there is no guarantee that the person will continue to care for the pet even if you leave a legacy. It’s most important to choose someone who already loves your pet and will cherish it for the remainder of its life.

Excluding Spouse or Child from a West Virginia Will

Many people believe that merely not including a child or spouse in your Will or leaving them a nominal share is sufficient to exclude them. In many states, this simply isn’t the case. Excluding family members from your West Virginia Last Will & Testament should never be attempted without advice from a qualified attorney.

Disinheriting a Spouse

It is not possible to disinherit a spouse in West Virginia by merely excluding them from your Will. If a person is not provided for by his/her spouse’s West Virginia Will, that spouse still has entitlements under the West Virginia Code, including:

  • An elective share depending on the length of your marriage. For example 3% if you have been married 1 year, 12% if married 5 years, 27% for 10 years, up to 50% if the period of marriage is 15 years or longer. If the calculated amount is less than $25,000, then the spouse is entitled to a further supplemental elective-share of $25,000. §42-3-1
  • If your most recent West Virginia Will was made prior to your marriage then, depending on the wording of your Will, your spouse may be entitled to a share of your estate. The portion is the amount which your spouse would receive if you die without a Will (intestate succession). §42-3-7

Disinheriting Children

In West Virginia, there are circumstances where omitted children will be entitled to a portion of your estate.

No children at the time of Your West Virginia Last Will and Testament:

If you made a Will and didn’t have any children at the time, then any children born after your West Virginia Will are entitled to your estate if they remain un-provided for by that Will. The amount they receive is based on the share they would be entitled to under intestacy rules (ie: as though you had died without a Will). If that child dies before they reach the age of eighteen years, then any amount not appropriated for that child’s benefit will revert to the person entitled to same under your Last Will. §41-4-1

Children at the time of Your West Virginia will:

If you had a child or children at the time you made your Last Will, any after-born children who are not provided for or expressly excluded from your West Virginia Last Will, are entitled to a share of your estate. The portion is once again based on the share they would have received under West Virginian intestate succession law. Again, if such children die before the age of eighteen, any unused portion reverts to the person(s) to whom it was given by your Will. §41-4-2

West Virginia Probate Information

Probating the Will

A West Virginia Last Will and Testament must be probated in order to be able to pass any property. This requires the original Will (not a photocopy) to be offered for probate with the Probate Department of the relevant Circuit Court.

The court will accept the Will for probate in solemn form if it is satisfied that the execution requirements have been complied with. Unless it’s self-proved, you will require a deposition from the attesting witnesses. Difficulties arise if the witnesses are deceased or cannot be located.

Fiduciaries

The court will issue “Letters of Administration” in order to appoint either an executor (under the Will) or an administrator (if there is no Will) (both known as a Fiduciary) to administer the estate.

Executor Appointed by a West Virginia Will

To be appointed as executor, the person named as such in the testator’s Will must first take an oath and give bond before the appropriate court or clerk. §44-1-1. The bond amount will be set after an interview with the court to determine the estimated value of the estate. If later inventory and appraisal reveals the assets are greater or smaller than first estimated, the bond can be adjusted accordingly.

Prior to being formally appointed, an executor named by the testator’s West Virginia will only has powers to provide for the burial, pay reasonable funeral expenses and take necessary action to preserve the estate from waste. §44-1-1

Executor unable to Act

If the executor named in the Will has died or refuses to act, an there are no alternate executors, then the court may appoint a person who would have been entitled to administration if there had been no will in order to act. That person must take the same oath and provide bond. §44-1-2

Who is the administrator is there is no West Virginia Will?

The role of administrator will be granted to the distributees (persons entitled to distribution of the estate) who apply for the role. First in priority is the husband or wife, then any others as the court or clerk sees fit. If no person applies within 30 days of the death, then the court may appoint one or more of the testator’s creditors or any other person. §44-1-4

What is a curator?

Before the executor or administrator is appointed or while the West Virginia will is being contested, the court may appoint a curator to ensure the estate is not wasted. The curator may demand, sue for and recover debts owed to the deceased and all his personal estate. If there is a Last Will in existence, he/she may collect any rents or profits from real estate and lease the property up to the period of the curator’s incumbency. §44-1-5

Estate / Inheritance Taxes

West Virginia has adopted the Federal guidelines with respect to estate tax returns. If the gross estate does not exceed the relevant exemption, then you will not need to file a Federal Estate Tax Return or a West Virginia Estate Tax Return (ET-76). It only needs to be filed if you are required to file the federal return.

However, even if you aren’t required to file a tax return, you must obtain release or certificate of non-liability from the West Virginia State Tax Department.

The relevant instructions and forms are generally sent to the executor or administrator after appraisement has been filed.

Contesting a West Virginia Will

Once a person files a petition, offering the Last Will and Testament for probate in solemn form, process will be served on all persons interested in the probate of the Will. This includes the surviving wife or husband, heirs at law and beneficiaries of the West Virginia Last Will and Testament.

At any time after the petition is filed and before final order is made admitting or refusing to admit the Will to probate, any person who wishes to challenge the Will may appear and file a notice of contest. A hearing date will be set down by the court and the person objecting to the Will must show cause why it should not be admitted to probate. §41-5-5

Also, any person who wishes to impeach a West Virginia Will must make a complaint in accordance with the provisions of section eleven, twelve or thirteen, article five, chapter forty-one of the West Virginia Code. §44-1-14a

Dying without a Will – Intestate Succession in West Virginia

If you pass away without leaving a valid Last Will and Testament, then your real and personal property pass in accordance with West Virginia succession law. You may limit or exclude a person’s right to inherit under the intestacy laws by expressing this in your West Virginia Will. It will then be treated as though that person had disclaimed their interest.

The intestate succession law firstly provides for your spouse, then other heirs.

What portion does my spouse receive?

  • If you have no surviving descendants (children and grandchildren) – the whole estate;
  • If all your surviving descendants are also the spouse’s (and the spouse has no other descendants) – the entire estate;
  • If all of your descendants are also the spouse’s (and the spouse has one or more descendants which are not yours) – 3/5 of the intestate estate;
  • If one or more of your surviving descendants are not also the spouse’s – ½ of the intestate estate. §42-1-3

Who are my other heirs & how much do they get?

The balance not inherited by your spouse is distributed in the following order:

  • Firstly, to your children (and grandchildren by representation)
  • Secondly, to your parents equally or the survivor
  • Thirdly, to your brothers and sisters (and their children by representation)
  • Fourthly, to your grandparents or their descendants. §42-1-3a
  • If no relatives survive you, your intestate restate will escheat to the state of West Virginia. §42-1-3c

Intestate Distribution Examples

Here are some case studies to help you understand how your property would be distributed in accordance with West Virginia law if you died without a West Virginia Will:

  1. Wife died, no will, intestate distribution to husband and children: Kaye passed away without a will. She had two children to her husband Kurt. Her estate is worth $100,000. Who gets what? Kurt: $100,000, Children: Nil.
  2. Husband died without a Will, leaving wife, children and stepchild. Who inherits?: Dwayne died leaving an estate of $100,000. He had no will. He has two children to his wife Lina and also a child from a former partner.
    Who gets what? Lina: $60,000, Lina & Dwayne’s 2 children: $20,000 each, Lina’s child from former partner: Nil.
  3. Example of intestate succession to wife and children of deceased husband who died without a Will and to husband’s child from former partner: Cody died leaving an estate of $100,000. He had no will. He has two children to his wife Amie. Cody has a child from a former partner. Who gets what? Amie: $50,000, Amie & Cody’s 2 children: $16,666 each, Cody’s child from former partner: $16,666.
  4. How property distributed when widow husband dies, no Last Will and Testament, leaving child and grandchildren: Hugh died without a will. His estate is worth $150,000. He had 3 children. Two have already died, leaving a granddaughter from one child and two grandsons from the other deceased child. His wife predeceased. Who gets what? Surviving child: $50,000 (1/3), Granddaughter: $50,000 (1/3), Grandsons (brothers): $25,000 each (totalling 1/3).

West Virginia Intestate Succession Law

The legislation governing distribution without a valid West Virginia Will is below:

Ҥ42-1-3. Share of spouse.

The intestate share of a decedent’s surviving spouse is:
(a) The entire intestate estate if:
(1) No descendant of the decedent survives the decedent; or
(2) All of the decedent’s surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
(b) Three fifths of the intestate estate, if all of the decedent’s surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
(c) One half of the intestate estate, if one or more of the decedent’s surviving descendants are not descendants of the surviving spouse.

§42-1-3a. Share of heirs other than surviving spouse.

Any part of the intestate estate not passing to the decedent’s surviving spouse under section three of this article, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
(a) To the decedent’s descendants by representation;
(b) If there is no surviving descendant, to the decedent’s parents equally if both survive, or to the surviving parent;
(c) If there is no surviving descendant or parent, to the descendants of the decedent’s parents or either of them by representation;
(d) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent’s paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent’s paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent’s maternal relatives in the same manner; but, if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent’s relatives on the other side in the same manner as the half.”

West Virginia Will Forms

Available forms help you with making a West Virginia Will, including:

  • Distributing your property including specific bequests and the residue
  • Appointing an Executor
  • Creating a Trust
  • Appointing a Trustee to look after trust property of minor children or other beneficiaries
  • Designating a guardian for your minor children

Sample will forms available as free downloads (printable PDF documents).

West Virginia Will Form: Married with adult children
West Virginia Will Form: Married with adult and/or minor children, includes a trust for minor children
West Virginia Will Form: Married with no children

West Virginia Will Form: Single with adult children
West Virginia Will Form: Single with adult and/or minor children, includes a trust for minor children
West Virginia Will Form: Single with no children

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