Creating a will is an important step in planning the distribution of your estate (assets including real and personal property) following your death. West Virginia wills allow for any children, your spouse, other family members, and pets to be provided for after your death. LegalZoom works with you, the testator (the person making the will), to create valid West Virginia wills and to assign a person (called the executor in most states) to administer a West Virginia last will and testament after the death of the testator.
Basic Requirements of a West Virginia Last Will and Testament:
Age: The testator must be at least 18 years old.
Capacity: The testator must be of sound mind (capable of reasoning and making decisions).
Signature: A West Virginia last will and testament must be signed by the testator or by some other person under the testator's direction in the testator's presence.
Witnesses: At least 2 witnesses (who are not beneficiaries) are required for a validWest Virginia last will and testament by subscribing their names to the will while in the presence of the testator and at the testator's direction or request.
Writing: AWest Virginia last will and testament must be in writing to be valid.
Beneficiaries: A will may make a disposition of property to any person.
Other types of recognized wills:
Holographic Wills: A holographic will is one that is handwritten by the testator. Handwritten wills must be witnessed to be valid. Although West Virginia law recognizes a handwritten will, state laws can be very particular regarding handwritten wills. Handwritten wills that are not properly witnessed are invalid in West Virginia
Distribution of Property:
A will is a legal document created by you to determine how your property, known as your estate, is distributed after your death. Your estate consists of assets and property including bank accounts, homes, land, furniture, automobiles, and securities (stocks and bonds). In general, West Virginia laws allow you to dispose of your property as you wish.
Other Purposes of Wills:
LegalZoom's West Virginia wills form may be used to designate a guardian for any minor children.
Our West Virginia wills form may be create a trust and designate a trustee to handle an estate (property left after death) on behalf of children or others.
Our West Virginia wills form may also be used to name an executor to handle a decedent's (the person who died) property and affairs from the time of death until an estate is settled.
Notable exceptions to the ability to distribute property:
Jointly owned property with the rights of survivorship automatically passes onto the survivor.
The surviving spouse has the right to an elective share in the augmented estate (essentially, the value of the decedent's probate estate, reduced by funeral and administration expenses, homestead exemption, property exemption and enforceable claims plus the value of the decedent's reclaimable estate). The percentage of the estate allowed to the surviving spouse is determined on a sliding scale based upon the number of years of the marriage at the time of death of the decedent.
Providing for Pets
West Virginia does not currently have estate planning laws specifically tailored to providing pet trusts. However, the testator may specify a beneficiary as the new owner of a pet.
Changing and Revoking
Changing a Will
A West Virginia will and testament may be changed whenever the testator desires.
A West Virginia will and testament can be changed through a codicil, which is a document stating additions or changes to the original will. Codicils must be executed in accordance with West Virginia probate laws.
Revoking a Will
A West Virginia will and testament, or any part thereof, can be revoked:
By a subsequent will that revokes, or partially revokes, the prior will expressly or by conflicting or different parts; or
By being burnt, torn, canceled, obliterated, or destroyed, with the intent and for the purpose of revoking the same, by the testator or by another person in the presence and by the direction of the testator.
Revocation of a will in its entirety revokes its codicils, unless revocation of a codicil would be contrary to the testator's intent.
Probate and Estate Taxes
Probate is a legal process for starting the transfer of property when the testator dies. The procedures validate the West Virginia last will and determine ownership of the property. Property that does not pass via community property, right of survivorship, trust, or insurance is subject to probate proceedings.
After the West Virginia last will is admitted at court, the executor files applications for the probate of a will and for legal documents called letters testamentary.
Several important functions of probate proceedings include:
Collecting, or taking possession of, the decedent's property.
Protecting and preserving the decedent's estate.
Paying all debts, claims and taxes.
Determining who is entitled to the assets and distributing the property according to the West Virginia last will.
West Virginia's estate tax is a "pick-up" tax designed to absorb the federal estate tax credit for state death taxes. No additional estate tax is imposed. The federal tax is based on the value of assets in the taxable estate. The West Virginia estate tax is equal to the state death tax credit allowed on the federal tax return. Filing a West Virginia estate tax return does not increase the total tax liability of the estate, but instead redirects revenues to the state which would go to the federal government.
It is extremely important to make a West Virginia will if you want to control the distribution of your estate. If you die without a valid will, you are said to have died "intestate" and your property will be distributed according to strict West Virginia state laws.
The net estate (after paying debts, taxes, administrative costs, and funeral expenses) of a decedent is distributed to the surviving spouse and other heirs in adherence to Wyoming state laws.
For example: if you die before you make a West Virginia will (or other valid will), if you die leaving a spouse and 2 children (of whom that spouse is also a parent) the entire estate will go to the surviving spouse. If, however, those children were from a different relationship, of the estate would go to the surviving spouse and the remainder of the estate will go to the surviving children (1/4 each).
If you make a West Virginia will, your valid will prevents the laws of intestacy from deciding the distribution of your estate.