A Guide to Creating Your Last Will and Testament in West Virginia

Are you married, have kids, and have a lot of assets? Then you should have a Will. Without it, the property you have built through years of hard work for your family may not get distributed according to your wishes.

Also, the distribution process will be much more tiring for your family without a Will to act as a guide.

Hence, take some time out of your schedule to secure your family's future.

In this article, you'll find the essential aspects of the last Will in West Virginia. Give it a read before you make your Will and do it right.

Understanding Last Will and Testament in West Virginia

What is the Last Will?

A last Will is a legal document including comprehensive and detailed instructions on how your assets and personal property will be distributed among your beneficiaries after your death.

The last Will shouldn't be confused with a Living Will. The latter directs how their medical care must proceed once the writer becomes incapacitated and incapable of communicating their own decisions.

Why Make a Last Will in West Virginia?

Making a last Will isn't a legal obligation. But it's better for your assets and loved ones if you make one. Why?

A Last Will allows you to spell out how you want your assets to be distributed after your death, helping to ensure that your wishes are carried out.
You can make a charitable gift.
You can create a "pet trust" to provide for the care of your pet after your death.
You can avoid the laws of intestate succession in your state, which may not align with your wishes.
You can appoint a guardian for your minor children, ensuring they are cared for by the person you choose.
The probate process will be much simpler with a valid Will, as the court will have clear instructions on distributing your assets.
You can help minimize conflict among family members or other potential beneficiaries by clearly stating your wishes and intentions.

Note: Not having a will has no effect on who receives retirement plans, jointly owned property, transfer on death accounts, and life insurance proceeds.

Requirements for Making a Valid Last Will According to West Virginia Law

Some requirements to make a valid last Will.

You must be 18 years old or more.
You must be of sound mind. That means you should not be under any undue influence or coercion and are not suffering from any mental disability that would prevent you from making rational decisions.
Your Will should be on an actual paper. It cannot be on audio, video, or any other digital file. The Will can be typed on a computer and printed, or you can handwrite the content. Holographic wills must be wholly in your handwriting, but they need not be witnessed. Although West Virginia permits handwritten Wills, they are usually not a good idea.
You must sign your Will in front of two competent witnesses. The witnesses must also sign your Will in front of you and each other.

Steps to Create West Virginia Wills

Make a List of Assets You Want to Include in Your Will

List your significant assets and decide which ones you want to distribute by other methods outside your Will. For example, you might have beneficiaries named for your retirement or bank account or want to keep certain assets out of probate.

Decide Who Will Inherit Your Property

Decide your beneficiaries and which assets will go to whom. In addition, name contingent beneficiaries if your first choices don't survive you.

Choose an Executor to Handle Your Estate

Name an executor who will carry out the terms of the Will. They'll oversee the probate process, the distribution of your assets and personal property, and the payment of your debts and taxes.

The person you choose is not required to have any special legal training to carry out their responsibilities. However, you must ensure that the person you have in mind is willing to, is of sound mind, and capable of carrying out your wishes.

Choose a Guardian for Your Children

Choose a guardian for your minor children who can take on their responsibility in case you and the other parent can't. If you leave any property to your minor children, you should also choose an adult to manage the inheritance until the children grow up capable.

Make Your Will

You can make your own Will or hire a lawyer. As making a Will is a serious endeavor (it's one of the important legal documents that will decide your family's future), hiring a professional lawyer is the best choice.

However, if you want to DIY, you can get a standard West Virginia Will form online that you can fill out.

You can also make your Will using do-it-yourself software or services.

But DIY isn't always a good idea. For example, if your assets and personal belongings are large in scale, you have a huge debt, or there are internal family conflicts, you should see a lawyer.

Sign Your Will in Front of Witnesses

After making your Will, you'll need to sign it in the presence of at least two competent witnesses. You'll also need to get your signature notarized if you're using a "self-proving affidavit" with your Will.

Note: A self-proving affidavit can speed up the probate process by eliminating the need for witness testimonies in court.

When choosing your witness, remember if either of the two witnesses is also listed as a beneficiary of the Will, then any gift to that person will be void unless there is a third witness who is disinterested in the Will.

Store Your Will Safely

Storing your Will in a safe space, away from complications but where your loved ones can easily discover it after you die, is paramount.

Ideally, you should keep it in a file cabinet or desk drawer—someplace your family would look for it. You do not have to keep it in a lock box, and doing so could delay the probate process after your death. Share the location of your Will with your executor.

Updating and Revoking a Last Will in West Virginia

If you have a few changes, you can make the modifications by amending your Will (codicil).

However, revocation is the way to go if you have multiple changes. You can revoke a West Virginia Will by:

Executing a subsequent Will;
Some other writing that says you want to revoke the Will and is signed the same way Wills have to be signed; or
The Will or its signature being cut, torn, burnt, or obliterated by either the testator or by someone else at your direction in your presence with the intent to revoke.

According to state laws, a probate court in West Virginia can revoke any language in your Will that leaves property to your divorced surviving spouse or names the spouse to be your executor.

But if you specifically state in your Will that divorce should not affect the provisions, the court won't revoke the language.

The Probate Process in West Virginia

After the testator's death, the assets can only be distributed according to the Will if the document is deemed valid in a probate court. Probate is the court-supervised procedure of distributing the estate of a deceased person.

Once the Will is deemed valid, the executor can fulfill their responsibilities, including collecting and protecting property, paying off debts, and distributing assets.

However, if your Will is termed invalid by the court, your property will get distributed among the heirs as if no Will ever existed. This distribution will be according to intestacy laws.

The probate process can take somewhere between six months to just around a year to settle.

But you may not need to wait that long thanks to the state's offering of a simplified probate process for small estates. For an estate to be regarded as small and qualify for simplified probate, it should meet one of the following requirements:

The value of the estate is $100,000 and does not contain real estate;
The personal representative is the sole beneficiary; or
Beneficiaries state that there'll be no disputes, that assets will cover debts and taxes, and that the executor agrees.

FAQs About West Virginia's Last Will

Ans. A Will may be the least expensive and most efficient choice for small estates with easily transferred assets and simple bequests. However, if your estate is larger and more complex, it's best to leverage both arrangements.

Ans. In West Virginia, you do not need to notarize your Will to make it legal.

However, if you want to make your will "self-proving," you'll need to go to a notary.

Ans. You can, but you shouldn't. This is because settling your estate may take time, especially if the Will is contested or has complex provisions.

On the other hand, the funeral typically happens within a few days, and it's the first thing that your family will address. So, if your instructions are in the Will, they may not even find them until it's too late.

Hence, creating separate documents to detail your funeral desires is better.

You can find more answers in this article if you have more questions. Give it a read.

Disclaimer: This article is for informational purposes only and does not constitute legal advice. Please consult a qualified attorney for advice on your specific situation.

Updated on: February 1, 2023