West Virginia State Specific Information

Will, Trust, Power of Attorney, and Estate Planning

Official state laws:

West Virginia Code Annotated
Probate jurisdiction rests with the County Court
Probate laws are primarily under Chapter 41

Minimum age requirement to:

Distribute property by will: 18 (Section 41-1-2)
Which minor gets property: 21

Holographic will recognized (Section 41-1-3)

State taxes:

Estate tax: Equal to federal credit for state death taxes (Section 11-11-3)
State gift tax:Inheritance tax: No inheritance tax (Section 11-11-3)
- No state gift tax (Section 11-11-3)
- Anatomical Gift Act (Section 16-19-2)
Inheritance tax: No inheritance tax (Section 11-11-3)

Default rules: How property is distributed if there is no will, i.e. laws of intestate succession: (Section 42-1-3 to 42-1-3a)

No surviving spouse, but there are surviving children:
- All of the estate goes to the surviving children split equally among them or to their children in accordance to their per stirpes share
Surviving spouse and
- Children of surviving spouse:
  - All of your estate will pass to your spouse
  - Children not of the surviving spouse (for example your children from a previous marriage):
    - one-half (1/2) to surviving spouse, and
    - the other one-half (1/2), split equally among the surviving children or grandchildren according to their per stirpes share
    - No children and both of your parents of deceased:
      - All of your estate will pass to your spouse
    - No children, but at least one of your parents survives you:
      - All of your estate will pass to your spouse
At least one parent survives you, but no surviving spouse or children:
- All of your estate will pass to your surviving parents equally
No spouse, children, or parents:
- Siblings (brothers and sisters) equally or to their children according to their per stirpes share. If none, then one-half (1/2) to maternal grandparents and their children according to their per stirpes share (or maternal aunts, uncles, or maternal next of kin or their children according to their per stirpes share), and the other one-half (1/2) to paternal grandparents and their children according to their per stirpes share (or maternal aunts, uncles, or paternal next of kin or their children according to their per stirpes share)

Who must be named as a beneficiary in your will:

Surviving spouse (Section 42-3-1), andChildren, born or adopted, and grandchildren of any deceased children (Section 41-4-1 and 41-4-2)
- Surviving spouse must be given amount depending on length of marriage; see statute for details (Section 42-3-1)
Children, born or adopted, and grandchildren of any deceased children (Section 41-4-1 and 41-4-2)

Effects of changes in your marital status on your will:

You are divorced from the surviving spouse:
- Revokes will as to divorced surviving spouse (Section 41-1-6)
You get married without changing your will that does not provide for your new spouse:
- Revokes will as to spouse (Section 42-3-7)

Out of state executors: Must have clerk of the county commission of the county where the probate is conducted serve as out of state executor’s agent to accept legal papers and must post a bond (unless the will expressly does not require a bond) (Section 44-5-3)

Witnesses:

Minimum number of witnesses required: Two (Section 41-1-3)
Are witnesses allowed to be beneficiaries?: Yes, but any witness may lose amount over which they are entitled to under state intestate law (Section 41-2-1)
Requirements to be a witness, witnesses must:
- be an adult or notary public,
- not be related to you by blood or marriage,
- not be entitled to anything in your will,
- not be finically responsible for your healthcare
- not your attending physician,
- not someone who signed documents on your behalf, and
- if you have a medical power of attorney, then your witness must not be your healthcare representative or successor

Property ownership (36-1-19):

Common law state
Bank account deposits held jointly are payable to any survivor named in the bank account
Joint tenancy requires express and clear language
Tenancy by the entirety and tenancy in common are recognized in this state

Other types of wills:

Self-proving wills recognized: Yes, recognized (Section 41-5-15)
Living Will (Section 16-30-4) requires a certification from you attending physicians that you are in a terminal condition and your death will result without using life-sustaining procedures
Medical Power of Attorney (Section 16-30-4)
Durable Power of Attorney (Section 39-4-1 to 39-4-7)