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How to Make a Will in West Virginia FAQ

Making a will in West Virginia is an important part of estate planning. By putting your wishes in writing, you can choose what happens to your property after your death. If you have minor children or pets, you can also pick who will care for them if you die. Wondering how you can make a West Virginia will? We have the answers to your FAQs.

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What If I Die Without a Will in West Virginia?

If you don’t have a will when you die in West Virginia, you die “intestate.” This means that West Virginia intestate laws dictate how to distribute your probate estate, and you have no say in what happens to your belongings. For example, if you’re unmarried but living with your partner, they will not inherit your property.

A probate court will follow West Virginia intestacy laws to determine who inherits your estate. Under these laws, your estate passes to your spouse and descendants, if any. Alternatively, if you die without a spouse or descendants, other family members will inherit your estate. If the court can’t locate your relatives, your entire estate will become the property of the state of West Virginia under its intestacy laws.

If you die without a will and have minor children, you lose the opportunity to have a say in your child’s guardian. What if the person the court chooses is not someone who shares your values and beliefs? You should choose who you think is the best guardian who is willing and able to take care of your kids.

What Does a Will Do?

A last will and testament is a legal document used to state your wishes about who gets your belongings, who cares for your minor children, if any, and who handles your estate when you die. A will allows you to do the following:

  • Describe any real estate, personal property, or other assets and choose the individuals, also known as beneficiaries, that you want to leave your property to
  • Name beneficiaries to receive your residuary estate (any leftover assets after the distributions of specific gifts and payment of any debts, taxes, or other estate costs)
  • Donate to charities
  • Name guardians for your young children
  • Designate a caregiver for your pets
  • Choose an executor or personal representative to handle your estate

By making a will, you help your loved ones avoid a lengthy probate process, expenses, and stress.

What Doesn’t a Will Do?

Although you can use a will to leave property and assets, some assets do not need to go through probate and do not pass in a will. These “non-probate” assets transfer directly to your beneficiaries or co-owners through beneficiary designations and may include the following:

  • Life insurance policies and annuities
  • 401(k)s, IRAs, pensions, and retirements
  • Checking and savings accounts
  • Investment accounts
  • Property jointly owned with survivorship rights
  • Property included in a revocable or irrevocable trust

Even though these assets do not pass through your will, you may want to confirm the beneficiaries on these accounts and policies. Any assets that do not have a beneficiary designation go into your probate estate.

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Who Can Make a Will in West Virginia?

In West Virginia, there are age and capacity requirements for a testator (the person making the will) to create a valid will.

  • Age: The testator is at least 18 years of age.
  • Sound Mind: The testator has a sound mind. This means the testator has sufficient mental capacity to understand what they are doing.

West Virginians with concerns if they are able to make a will should consult with an estate planning attorney for legal advice.

Does West Virginia Have a Statutory Will?

No. West Virginia law does not have a specific will form you must use. Many people choose to make their own will using online resources that comply with the laws in their state.

What Types of Wills Does West Virginia Accept?

There are different methods you can use when making a will. However, West Virginia has its own requirements, so it’s a good idea to familiarize yourself with the types of wills West Virginia will accept as legally valid.

  • Handwritten Will: A will written in the testator’s handwriting without witnesses is known a holographic will. West Virginia allows holographic wills as long as the entire will is in the testator’s handwriting.
  • Oral Will: A will spoken out loud by the testator, called a nuncupative will, is not valid in West Virginia. There are exceptions for members of the military who are on active duty and mariners who are out to sea.
  • Electronic Will: An electronic will is a will signed, witnessed, or notarized digitally (as opposed to a physical signature). West Virginia does not currently permit digital or electronic signatures on wills. However, wills made online are valid as long as you print a paper copy, include physical signatures and follow state laws for will execution.

Can I Make My Own Will in West Virginia?

Yes. You can create your own will in West Virginia. Many people with simple estates choose to make their own will and other estate planning documents, like a power of attorney and living will. Using an online service to make a will allows you gather whatever information you need and work at your own pace. Another benefit is that you can update your will when you want (for example, changing a beneficiary or guardian) by making a new will and not have to make a codicil (an amendment) to your will.

How Do I Make My Will Valid in West Virginia?

To make a valid will in West Virginia, you should comply with the West Virginia code and following requirements:

  • Testator Signature: The person making the will must sign it or direct another individual in their presence to sign the will on their behalf.
  • Witnesses: At least two competent witnesses must sign the will in each other’s and the testator’s presence. Witnesses should generally not be a beneficiary or other interested party under the will.
  • Notary: You are not required to have your will notarized. However, if your will includes a self-proving affidavit, you must use a notary public.
  • Self-Proving Affidavit: A will with a self-proving affidavit allows a court to admit the will to probate without requiring additional proof that the will’s execution complies with West Virginia law. Your witnesses’ signatures on a self-proving affidavit must be notarized.

Can I Disinherit My Spouse in West Virginia?

No. You can only disinherit your spouse if they choose to waive their interest in your estate by a written agreement or signed waiver. If you leave your surviving spouse nothing, they are entitled to an elective share of your estate based on the length of your marriage. An elective share is a share of a decedent’s estate that a spouse may claim if left out of the will.

Can I Disinherit My Children in West Virginia?

Yes, you can disinherit your child. Under state law, children generally have no right to inherit from a parent. However, a child has a claim to a pretermitted share of their parent’s estate if they meet both of the following conditions:

  • The child is born or adopted after their parents sign their will.
  • The parent does not provide for the child in their will.

What Estate Planning Documents Should I Have in West Virginia?

A will is one of the most common documents making up an estate plan. Having a will helps to relieve some of the stress and burdens from your loved ones after your death. Other estate planning documents help you and your family throughout your life. For example, in the event you are incapacitated and no longer capable of handling your affairs.

  • Power of Attorney. A power of attorney allows you to give someone the authority to manage your finances and property for you. You can choose an agent that will act in your best interest and delegate their powers as you see fit.
  • Health Care Directive. With a health care directive, living will, or advance directive, you can provide health care instructions to act as a guide for your medical providers, family, or anyone else involved in your medical care. You can also incorporate a medical power of attorney to name a health care agent to follow your end-of-life wishes, communicate with your health care provider and make other medical decisions on your behalf.

Fortunately, making a valid will and creating other West Virginia estate planning documents is easy with online estate planning templates.

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Written by:

Jordan Walker, J.D.

Legal Writer

Reviewed by:

Catherine Hodder, Esq.

Senior Legal Writer