West Virginia Wills vs. Trusts
Navigating West Virginia estate planning doesn’t have to be overwhelming. The Mountain State offers unique estate planning features including recognition of holographic wills, qualified self-settled spendthrift trusts, and special provisions for transfer-on-death real estate deeds. With West Virginia’s generous small estate threshold and variable spousal elective share based on marriage length, understanding the basic differences between wills and trusts can save your family significant time, money, and stress while preserving your legacy.
Table of Contents
US Map For The Different Will and Trust Requirements by State
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West Virginia Will Requirements
A West Virginia Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound mind” and at least 18 years old
- Sound Mind Definition: Testator understands the nature of his or her business, the property in the testator’s estate, the individuals who stand to inherit the testator’s property, and how the testator intends to distribute assets
- Format: Must be in writing
- Signature: Must be signed by the testator (or another person signing on behalf of the testator while in the testator’s presence)
- Witnesses: Must be signed by two competent witnesses (except for holographic wills)
Witness Requirements
For West Virginia wills:
- Witnesses must be present at the same time
- Witnesses 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
Interested Witness Limitations
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 witness’s intestate share or the amount devised by the will—whichever is less.
Incorporation by Reference
Self-Proved Wills
West Virginia wills need not be notarized, but a will can be made “self-proved” if the will’s witnesses—at the testator’s request—execute 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 witnesses’ affidavit is present, an uncontested will can be admitted in probate based upon the affidavit and without in-person testimony from the witnesses
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Amendment, Revision, and Revocation of West Virginia Wills
Amending or Revoking a West Virginia Will
A West Virginia will may be revoked or amended through:
- Execution of a subsequent will or codicil (an addendum to an existing will)
- A similar instrument executed by the testator in compliance with all formalities required for a valid will
Revocation by Physical Act
A West Virginia testator—or another individual acting on the testator’s behalf while in the testator’s presence—may 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
Automatic Revocation by Divorce
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 testator’s estate is treated as though the former spouse had predeceased the testator with regard to assets the former spouse would have otherwise inherited.
Marriage After Will Execution
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 spouse’s child.
The surviving spouse’s share is inapplicable if:
- The will was made in contemplation of the marriage
- The will is expressly effective notwithstanding a subsequent marriage
- The deceased testator made other provisions for the surviving spouse in lieu of the will
Children Born After Will Execution
If a testator has a child after executing a West Virginia will—and if the testator does not otherwise provide for the child or intentionally disinherit the child—the child is entitled to an interest in the estate as if the testator had died without a will.
Holographic and Oral Wills
Holographic Wills
Holographic wills are valid in West Virginia if the will is signed by the testator and wholly written in the testator’s handwriting. A testator must have adequate capacity to create a holographic will, but a holographic will need not be witnessed.
Oral Wills
Oral (or “nuncupative”) 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)—West Virginia’s 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 instrument—except 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)
Requirements for a Valid West Virginia Trust
For a trust to be valid under West Virginia law:
- West Virginia trusts can be created for any lawful purpose that is possible to achieve and does not violate the state’s public policy
- The purpose and terms of a West Virginia trust must be to benefit the trust’s beneficiaries
- The grantor must have adequate capacity to create the trust and express 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 influence—evaluated under the same standard applicable to wills
- For revocable trusts, the standard for capacity is also the same as for wills
- A West Virginia trust must be evidenced by a written trust instrument—which can include a grantor’s will
Trust Creation Methods
A West Virginia trust can be created through:
- Transfer of property by a grantor to a trustee
- A grantor’s declaration that the grantor owns certain property as trustee
- By exercising a power of appointment in favor of a trustee
- By court order
Required Trust Elements
A West Virginia trust must have:
- A trustee with actual duties to perform
- A definite beneficiary—including 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
Sole Trustee/Beneficiary Rule
The same person cannot be a trust’s sole trustee and sole beneficiary. A West Virginia trust is valid regardless of the value, character, or existence of trust assets.
Memorandum of Trust for Real Estate
If a trust owns real estate, the trustee can record a memorandum of trust in the land records of any county where the trust’s real estate is located:
- A memorandum of trust provides information about the trust’s existence and characteristics
- When recorded, the memo provides constructive notice of the trust to creditors, future purchasers, and other interested third parties
Trustee Responsibilities
- Trustees are held to a fiduciary standard
- A trustee’s administration of a West Virginia trust is governed by the “prudent person rule”
- A trustee must exercise reasonable skill, care, and caution in administration and consider the trust’s purposes, terms, distributional requirements, and other circumstances
Revocability
West Virginia law assumes that trusts are revocable unless a trust is expressly made irrevocable.
Trust Termination
West Virginia trusts terminate upon:
- Revocation or expiration under a trust’s own terms
- When a trust’s purpose becomes unlawful or impossible
- 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
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Special Considerations
Estate Taxes
No Estate or Inheritance Taxes
West Virginia does not assess any state-level inheritance or estate tax. Large West Virginia estates may still qualify for the federal estate tax.
Simplified Probate
Small Estates Process
West Virginia provides a streamlined “small estates” probate process for estates with:
- Personal property valued at $50,000 or less, and
- Real estate valued at $100,000 or less
Process:
- A decedent’s executor can file a small estate affidavit 30 days after death
- An heir can file the affidavit 60 days after death if the decedent leaves no will
- The affidavit provides information about the estate’s assets and beneficiaries
- This process typically allows for quicker, less expensive administration of uncontested estates
Non-Probate Transfers
Transfer-on-Death Instruments
Transfer-on-Death Deeds
West Virginia law authorizes real estate deeds with TOD designations—often called “beneficiary deeds,” “transfer on death deeds,” or “TOD deeds”:
- 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 owner’s death
- This avoids the need for probate
Lady Bird Deeds
West Virginia also recognizes “lady bird deeds,” also called “enhanced life estate deeds”:
- A lady bird deed grants or reserves a life estate in real property—giving the holder of the life estate (or “life tenant”) title to the property for the remainder of his or her life
- A lady bird deed also designates a “remainderman” who receives title after the life tenant’s death
- Lady bird deeds differ from traditional life estate deeds in that the life tenant’s rights—such as the right to sell, transfer, or mortgage the real estate—are not limited by the remainderman’s interest
- Lady bird deeds are less common since the West Virginia Legislature authorized TOD deeds in 2014
Vehicle Titles
West Virginia does not authorize TOD designations on vehicle titles.
Self-Settled Spendthrift Trusts
Spendthrift Trust Protection
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 beneficiary’s creditors can attach the beneficiary’s interest in the trust upon court approval
- Spendthrift provisions prevent attachment by a beneficiary’s creditors other than attachment to satisfy child support obligations, certain government claims, or judgments derived from services to protect the beneficiary’s interest in the trust
Qualified Self-Settled Spendthrift Trusts
The general rule is that a grantor’s creditors can attach assets of a revocable trust or—if a trust is irrevocable—attach the value of assets that could be distributed for the grantor’s benefit. However, subject to certain limitations, West Virginia law authorizes “qualified self-settled spendthrift trusts”:
- A trust is “self-settled” if the same person is grantor and beneficiary
- A West Virginia qualified self-settled spendthrift trust prevents creditor attachment of a grantor-beneficiary’s “qualified interest” in the trust
Requirements for Self-Settled Spendthrift Trusts
A qualified self-settled spendthrift trust must:
- Be irrevocable
- Be created during the grantor-beneficiary’s life
- Be managed by an independent qualified trustee with complete discretion over distributions
- Not have the grantor as the exclusive beneficiary
Upon creating the trust, the grantor must certify that—among other things—transfer of property to the trust is not intended to avoid creditors and will not make the grantor insolvent.
Need help creating the right estate plan for your West Virginia family?
Our estate planning specialists can help you navigate West Virginia’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| West Virginia Special Feature | Recognizes holographic wills without witnesses | Qualified self-settled spendthrift trusts for asset protection |
Conclusion
Creating a will or trust does not have to be difficult or intimidating for West Virginia residents. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests—can add complexity and result in unforeseen consequences.
West Virginia offers unique estate planning tools like holographic wills, qualified self-settled spendthrift trusts, and lady bird deeds for real estate. The state’s generous small estate threshold for simplified probate and graduated spousal elective share based on marriage length provide important protections for families. When any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with and licensed under West Virginia law to ensure your estate plan takes full advantage of the state’s provisions while avoiding potential pitfalls.
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FAQs: West Virginia Wills and Trusts
Q: What are the requirements for a valid will in West Virginia?
A: A West Virginia will must be in writing, signed by the testator (or by someone at their direction in their presence), and witnessed by two competent people who must be present at the same time and sign in the presence of the testator and each other. The testator must be at least 18 years old and of sound mind. Alternatively, a holographic will written entirely in the testator’s handwriting and signed by the testator is valid without witnesses.
Q: Does West Virginia recognize handwritten wills?
A: Yes, West Virginia recognizes holographic (handwritten) wills as valid without witnesses, provided the will is signed by the testator and written entirely in the testator’s handwriting. The testator must still have the mental capacity required to make a valid will.
Q: What is a self-settled spendthrift trust in West Virginia?
A: A self-settled spendthrift trust is a special type of trust where the person creating the trust (grantor) is also a beneficiary, but their creditors cannot reach the assets. West Virginia law allows qualified self-settled spendthrift trusts if they are irrevocable, created during the grantor’s life, managed by an independent trustee with discretion over distributions, and the grantor is not the only beneficiary. The grantor must certify that the transfer to the trust is not to defraud creditors.
Q: Can I avoid probate with a small estate in West Virginia?
A: Yes, West Virginia offers a streamlined small estates process for estates with personal property valued at $50,000 or less and real estate valued at $100,000 or less. An executor can file a small estate affidavit 30 days after death, or an heir can file 60 days after death if there’s no will. This simplified procedure typically allows for faster, less expensive administration.
Q: How are surviving spouses protected under West Virginia law?
A: West Virginia protects surviving spouses through an elective share right that ranges from 3% to 50% of the augmented estate, depending on the length of the marriage, with a minimum $25,000 supplemental share. In intestacy cases, a surviving spouse receives the entire estate if there are no children or if all children are also the surviving spouse’s children.
Q: What are transfer-on-death deeds in West Virginia?
A: West Virginia recognizes transfer-on-death (TOD) deeds, which allow property owners to designate beneficiaries to automatically receive real estate upon the owner’s death without probate. West Virginia also recognizes “lady bird deeds” or enhanced life estate deeds, which give the life tenant continued control over the property while designating a remainderman to receive the property at death.
