A last will and testament is an important step in planning the distribution of your estate (real and personal property) upon your death. West Virginia wills permit the testator, the person writing the will, to provide for a spouse, children, other loved ones, and pets after his death, as well as to name a personal representative for the estate.
Not to be confused with a will, a West Virginia living will provides instructions should you become incapacitated and incapable of making decisions regarding your medical care.
Do you need a last will and testament?
Although a last will and testament is not legally required, without a will, state laws (called laws of intestacy) will determine the distribution of the deceased’s assets. The outcome may not coincide with the decedent's (the person who passed away) wishes, however, which means it is generally advisable to create a last will and testament.
In addition to providing the opportunity to direct asset distribution, a West Virginia last will and testament also allows the testator to make a charitable gift, create a trust for any person, name a legal guardian for minor children, or create a “pet trust” in order to provide for the care of an animal after its owner’s death.
Before the terms of a will can be accepted, the will must be proven in probate court. Probate is the court-supervised process of distributing the estate of a deceased person.
Once the will is proven, the executor can proceed to wrap up the estate, which includes collecting and protecting property, paying off debts, and then distributing assets.
West Virginia offers a simplified probate process for small estates that meet one of the following requirements:
- The value of the estate is $100,000 and does not contain real estate.
- Personal representative is the sole beneficiary; or
- Beneficiaries state that no disputes are likely, that assets will cover debts and taxes, and the executor agrees.
Intestacy: Dying without a will
Someone who dies without a will is called “intestate,” which invokes the strict laws of intestacy. In West Virginia, in the absence of a will, a surviving spouse inherits the entire estate even if the decedent and surviving spouse share descendants, except if the surviving spouse has descendants from another relationship as well, in which case the surviving spouse inherits three-fifths of the estate and the decedent’s descendants inherit the rest. If the decedent has descendants from another relationship, the surviving spouse and descendants each inherit half.
If there is no surviving spouse, descendants, or parents, other relatives, including siblings and grandparents, will inherit depending on the closeness of the relation.
Exceptions to the ability to distribute property
Not all property can be distributed according to a will. Some exceptions in West Virginia include the following:
- Property owned in joint tenancy with right of survivorship
- Elective share of surviving spouse
- Homestead exemption for surviving spouse
- Property exemption for surviving spouse
Form a last will in West Virginia
The basic requirements for a West Virginia last will and testament include the following:
- Age: The testator must be at least 18 years old.
- Capacity: The testator must be of sound mind.
- Signature: The will must be signed by the testator or by someone else in the testator’s name in his presence, by his direction.
- Witnesses: A West Virginia will must be signed by at least two individuals, who should not also be beneficiaries in the will and who witness the signing of the will or acknowledgement of the will by the testator; the witnesses should also be present at the same time.
- Writing: A West Virginia will must be in writing.
- Beneficiaries: A testator can leave property to anyone.
Other recognized wills in West Virginia
West Virginia recognizes holographic (handwritten) wills under certain circumstances.
Changing a West Virginia last will and testament
A West Virginia will may be changed at any time by codicil, an amendment to the will, which must be executed in the same way as a will.
Revoking a West Virginia last will and testament
The revocation of a West Virginia will can be accomplished in the following ways:
- By executing a subsequent will;
- By some other writing declaring an intention to revoke the will, executed in the same manner required of wills; or
- By the will’s or its signature being cut, torn, burnt, obliterated, canceled, or destroyed by either the testator or by someone else at his direction in his presence with the intent to revoke.
If you are ready to make a last will of your own, LegalZoom can help you get started in three easy steps. LegalZoom also offers other legal products to help you prepare for the future, such as a living will and a power of attorney.
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