WEST VIRGINIA WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills: West Virginia Code, Chapter 41: Wills.
Trusts: West Virginia Code, Chapter 44D: West Virginia Uniform Trust Code.
West Virginia Will Requirements.
To execute a valid will, a West Virginia testator must be at least 18 years old and โof sound mind.โ Soundness of mind generally means the testator understands the nature of his or her business, the property in the testatorโs estate, the individuals who stand to inherit the testatorโs property, and how the testator intends to distribute assets.
Under West Virginia law, a will must be in writing and signed by the testator (or another person signing on behalf of the testator while in the testatorโs presence). Except in the case of a holographic will, a testator must sign in the presence of two competent witnesses. Witnesses must be present at the same time and must subscribe the will in the presence of the testator and each other.
West Virginia only requires witnesses to be generally competent to act as a witness. If a will is witnessed by an interested party (i.e., individuals with beneficial interests in the estate and their spouses), the will may still be valid. However, provisions in favor of an interested witness are void unless the interested witness would have inherited from the estate had the testator left no will. In that case, an interested witness can receive a share of the estate up to the witnessโs intestate share or the amount devised by the willโwhichever is less.
A personal representative or creditor is not barred from serving as a witness to a West Virginia will based solely on their status as creditor or personal representative.
West Virginia law does not authorize incorporation of other documents by reference within a willโas is permitted in many other states. A West Virginia testator may prepare a list or memorandum of personal property with instructions for distribution of individual items. A personal representative customarily honors such a list as a moral obligation, but the list is not legally binding on the personal representative or other parties unless the list is signed and witnessed with the formality of a will or codicil.ย
West Virginia wills need not be notarized, but a will can be made โself-provedโ if the willโs witnessesโat the testatorโs requestโexecute a notarized affidavit to accompany the will. The self-proved affidavit attests to the matters necessary to prove the will admissible in probate. When the witnessesโ affidavit is present, an uncontested will can be admitted in probate based upon the affidavit and without in-person testimony from the witnesses.ย ย
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
Amendment, Revision, and Revocation of West Virginia Wills.
A West Virginia will may be revoked or amended through execution of a subsequent will or codicil (an addendum to an existing will)โor a similar instrument executed by the testator in compliance with all formalities required for a valid will.ย A West Virginia testatorโor another individual acting on the testatorโs behalf while in the testatorโs presenceโmay also revoke a will by cutting, tearing, burning, obliterating, canceling, or destroying the physical document or signature with the intent that the will be revoked. West Virginia law presumes that a testator intended to revoke a will if the burned, destroyed, or cancelled document is found in the testatorโs possession after death.ย
If a West Virginia testator is divorced after executing a will, any provisions in favor of the former spouse are deemed revoked unless the will expressly provides otherwise. The testatorโs estate is treated as though the former spouse had predeceased the testator with regard to assets the former spouse would have otherwise inherited. Provisions revoked by divorce are revived if the testator later remarries the same spouse.
If a West Virginia testator marries after executing a will, the surviving spouse is entitled to a share of the estate equal to what the spouse would have received if the decedent spouse left no will. The share is reduced by any amounts devised to a child of the testator who was born before the marriage and is not also the surviving spouseโs child. The surviving spouseโs share is inapplicable if (1) the will was made in contemplation of the marriage, (2) the will is expressly effective notwithstanding a subsequent marriage, or (3) the deceased testator made other provisions for the surviving spouse in lieu of the will.
If a testator has a child after executing a West Virginia willโand if the testator does not otherwise provide for the child or intentionally disinherit the childโthe child is entitled to an interest in the estate as if the testator had died without a will. If an after-born child inherits in this manner and does not reach age 18โand dies unmarried with no childrenโany remaining portion of the inherited amount not applied toward the childโs support and education reverts to whoever would have received the share under the will.ย
Holographic and Oral Wills.
Holographic wills are valid in West Virginia if the will is signed by the testator and wholly written in the testatorโs handwriting. A testator must have adequate capacity to create a holographic will, but a holographic will need not be witnessed.
Oral (or โnuncupativeโ) wills are not generally recognized in West Virginia. However, West Virginia law authorizes soldiers in actual military service and sailors at sea to dispose of their personal assets in the manner allowed under common law. Thus, oral wills made by soldiers and sailors may be valid in limited circumstances.
West Virginia Trust Requirements.
West Virginia trusts are primarily governed by the West Virginia Uniform Trust Code (enacted by the legislature as Chapter 44D of the West Virginia Code)โWest Virginiaโs version of the Uniform Trust Code. Common law principles relating to trusts supplement the statute. In the event of conflict between the two, the statute takes precedence. Chapter 44D provides default provisions that can be superseded by a written trust instrumentโexcept with regard to certain statutory rules that cannot be modified (such as requirements for creating trusts, effect of spendthrift provisions, and jurisdictional powers of courts over trusts).
West Virginia trusts can be created for any lawful purpose that is possible to achieve and does not violate the stateโs public policy.ย The purpose and terms of a West Virginia trust must be to benefit the trustโs beneficiaries.ย
A West Virginia trust can be created through transfer of property by a grantor to a trustee, a grantorโs declaration that the grantor owns certain property as trustee, by exercising a power of appointment in favor of a trustee, or by court order. An agent acting under a valid power of attorney can create a West Virginia trust on behalf of the principal (who becomes the grantor of the trust) if the POA instrument expressly delegates authority to create a trust.
Other than trusts created by court order or under a valid POA, a trust is only created under West Virginia law if the grantor has adequate capacity to create the trust and expresses an intent to create a trust. A trust is void under West Virginia law if it is found to have been induced by fraud, duress, or undue influenceโevaluated under the same standard applicable to wills. For revocable trusts, the standard for capacity is also the same as for wills. West Virginia law assumes that trusts are revocable unless a trust is expressly made irrevocable.
A West Virginia trust must be evidenced by a written trust instrumentโwhich can include a grantorโs will. Oral trusts are unenforceable in West Virginia.ย If a trust owns real estate, the trustee can record a memorandum of trust in the land records of any county where the trustโs real estate is located. A memorandum of trust provides information about the trustโs existence and characteristics. When recorded, the memo provides constructive notice of the trust to creditors, future purchasers, and other interested third parties.
A West Virginia trust must have a trustee with actual duties to perform and a definite beneficiaryโincluding a beneficiary who can be ascertained in the future and subject to exceptions such as for charitable trusts and trusts for the care of animals. The same person cannot be a trustโs sole trustee and sole beneficiary. A West Virginia trust is valid regardless of the value, character, or existence of trust assets.
Trustees are held to a fiduciary standard, and a trusteeโs administration of a West Virginia trust is governed by the โprudent person rule.โ A trustee must exercise reasonable skill, care, and caution in administration and consider the trustโs purposes, terms, distributional requirements, and other circumstances.
West Virginia trusts terminate upon revocation or expiration under a trustโs own terms, when a trustโs purpose becomes unlawful or impossible, or when no purpose of a trust remains to be achieved. A trust may be modified or terminated by a court at the request of the trustee or beneficiaries. A trustee may terminate a noncharitable trust without court approval if the value of trust assets is below $200,000 and does not justify costs of administration.
The Estate Planners Tactical Guide
Essential Legal Protection for AchieversSpecial Considerations.
Estate Taxes: West Virginia does not assess any state-level inheritance or estate tax.ย Large West Virginia estates may still qualify for the federal estate tax.ย ย
Simplified Probate:ย West Virginia provides a streamlined โsmall estatesโ probate process for estates with personal property valued at $50,000 or less and real estate valued at $100,000 or less. A decedentโs executor can file a small estate affidavit 30 days after death, or an heir can file the affidavit 60 days after death if the decedent leaves no will.ย The affidavit provides information about the estateโs assets and beneficiaries and typically allows for quicker, less expensive administration of uncontested estates.
Non-Probate Transfers:ย Along with living trusts, West Virginia law offers multiple other options for transfer of assets outside of probate. Assets co-owned as joint tenants with a right of survivorship automatically transfer to a surviving owner upon the other ownerโs death.ย West Virginia does not recognize tenancy by the entiretyโa joint ownership form with right of survivorship that can only be used by married spouses.ย ย
POD (payable-on-death) and TOD (transfer-on-death) designations, which provide for automatic transfer of an asset to a beneficiary upon an ownerโs death, can also be used in West Virginia for many assets.ย For instance, POD designations can be added to financial accounts and CDs, and TOD designations can be used with assets like registered securities and brokerage accounts.ย ย
Similarly, some assetsโlike retirement accounts and life insuranceโallow owners to name a beneficiary who automatically takes ownership of the asset upon the original ownerโs death.
Transfer-on-Death (TOD) Deeds and Vehicle Titles:ย West Virginia law authorizes real estate deeds with TOD designationsโoften called โbeneficiary deeds,โ โtransfer on death deeds,โ or โTOD deeds.โ If an owner of West Virginia real estate records a transfer-on-death deed naming a beneficiary, title to the real estate vests in the beneficiary upon the ownerโs deathโwithout need for probate.
West Virginia also recognizes โlady bird deeds,โ also called โenhanced life estate deeds.โ A lady bird deed grants or reserves a life estate in real propertyโgiving the holder of the life estate (or โlife tenantโ) title to the property for the remainder of his or her life. A lady bird deed also designates a โremaindermanโ who receives title after the life tenantโs death. Lady bird deeds differ from traditional life estate deeds in that the life tenantโs rightsโsuch as the right to sell, transfer, or mortgage the real estateโare not limited by the remaindermanโs interest. Lady bird deeds are less common since the West Virginia Legislature authorized TOD deeds in 2014.
West Virginia does not authorize TOD designations on vehicle titles.
Spousal Shares: To protect against disinheritance by will, West Virginia law guarantees surviving spouses a waivable elective share in a decedent spouseโs โaugmented estate.โย The elective share ranges from three to fifty-percent (depending on the length of the marriage)โsubject to a $25,000 minimum supplemental elective share. The augmented estate is equal to the value of the decedentโs probate estateโminus exemptionsโand certain non-probate assets such as jointly-titled property and property held in a revocable living trust.
If a married West Virginia resident leaves no will, the surviving spouse receives the entire estate if the decedent leaves no surviving children. If all children of the deceased spouse are also children of the surviving spouseโand vice versaโthe surviving spouse receives the entire estate.ย If the deceased spouse leaves surviving descendants (i.e., children or grandchildren) who are not the surviving spouseโs descendants, the surviving spouseโs share is one-half of the estate. If the deceased spouseโs surviving descendants are also descendants of the surviving spouseโbut the surviving spouse has descendants who are not the descendants of the deceased spouseโthe surviving spouseโs share is three-fifths of the estate.
Self-Settled Spendthrift Trusts:ย Like most states, West Virginia recognizes spendthrift trusts protecting trust assets from creditors. If a West Virginia trust does not have a spendthrift provision, a beneficiaryโs creditors can attach the beneficiaryโs interest in the trust upon court approval. Spendthrift provisions prevent attachment by a beneficiaryโs creditors other than attachment to satisfy child support obligations, certain government claims, or judgments derived from services to protect the beneficiaryโs interest in the trust.
The general rule is that a grantorโs creditors can attach assets of a revocable trust orโif a trust is irrevocableโattach the value of assets that could be distributed for the grantorโs benefit. However, subject to certain limitations, West Virginia law authorizes โqualified self-settled spendthrift trusts.โ A trust is โself-settledโ if the same person is grantor and beneficiary. A West Virginia qualified self-settled spendthrift trust prevents creditor attachment of a grantor-beneficiaryโs โqualified interestโ in the trust.
A qualified self-settled spendthrift trust must be irrevocable, created during the grantor-beneficiaryโs life, managed by an independent qualified trustee with complete discretion over distributions, and the grantor cannot be the exclusive beneficiary. Upon creating the trust, the grantor must certify thatโamong other thingsโtransfer of property to the trust is not intended to avoid creditors and will not make the grantor insolvent.ย
Creating a will or trust does not have to be difficult or intimidating.ย However, certain circumstancesโlike second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)โcan add a layer of complexity and result in unforeseen long-term consequences.ย Whenever any out-of-the-ordinary issues are present, itโs a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
