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Wills Basics in West Virginia
A plain-language introduction to what a will is, what it can and can't do, and what West Virginia law generally expects for a will to be valid.
What a Will Does
A will, often called a last will and testament, is a written document that says how a person wants their property distributed after death. It can name an executor, the person responsible for carrying out the will's instructions, and it can nominate a guardian for the court to consider if the person has minor children.
A will only controls property that passes through probate — generally, property held in the deceased person's name alone. It does not control property that passes automatically to someone else by law or by contract, such as jointly owned real estate, a bank account with a payable-on-death beneficiary, or a life insurance policy with a named beneficiary. Those assets pass to the co-owner or named beneficiary regardless of what the will says.
Key Terms
- Testator
- The person who makes a will.
- Executor
- The person named in a will to carry out its instructions and manage the estate through probate.
- Beneficiary
- A person or organization named to receive property under a will.
General Requirements for a Valid Will
West Virginia law sets out several basic requirements for a will to be valid. The person making the will generally must be an adult and of sound mind, meaning they understand, in general terms, what they own and who they are choosing to leave it to.
The will must be in writing — an oral statement about what someone wants to happen to their property is not enough to serve as a will. It must be signed by the person making it, or by someone else acting at their direction and in their presence.
Unless the will is written entirely in the testator's own handwriting, West Virginia law requires it to be signed, or acknowledged, in front of at least two competent witnesses who are present at the same time. Those witnesses then sign the will in the presence of the testator and of each other.
Key Terms
- Holographic Will
- A will written entirely in the testator's own handwriting; West Virginia recognizes these without the usual witness requirement.
What a Will Does Not Do
A common misunderstanding is that having a will avoids probate. It does not. A will is a set of instructions used within the probate process — it directs who is in charge and who receives the probate property, but the estate generally still goes through the same court-supervised administration process either way.
A will also has no effect until the person who made it dies. It can generally be changed or revoked at any time before then, as long as the person remains of sound mind. And a will is a different document from a living will or medical power of attorney, which address health care decisions rather than property — those are separate planning tools.
If Someone Dies Without a Will
When a person dies without a valid will, West Virginia law refers to them as dying intestate. State law then supplies a default plan, sometimes called intestate succession or descent and distribution, for how the probate property is divided among surviving relatives.
In general terms, a surviving spouse and children are usually first in line, though the exact division can depend on family circumstances — for example, whether the children are shared with the surviving spouse or come from another relationship. If there is no surviving spouse or children, the law looks to more distant relatives, such as parents or siblings, in a set order. If no relatives can be located, an estate can ultimately pass to the state.
Dying without a will does not mean there is no process — an estate still generally goes through administration, and the court appoints someone, called an administrator, to manage it in place of an executor.
Key Terms
- Intestate
- Dying without a valid will, so that state law decides how the probate property is divided.
- Administrator
- The person appointed by the court to manage an estate when there is no will, or no executor able to serve.
Keeping a Will Current
A will can generally be updated by signing a new will or a formal amendment, known as a codicil, that meets the same signing and witnessing requirements. It can also be revoked, such as by physically destroying it with the intent to revoke it, or by a later will that says so.
Because a will is only as useful as it is current, many people revisit their will after a major life event — a marriage, divorce, birth, or the death of a beneficiary or executor named in the document — to make sure it still reflects their wishes.
Common Questions
Do I need a lawyer to write a will in West Virginia?
West Virginia law does not require an attorney to prepare a will. However, small mistakes in how a will is signed or witnessed can cause it to be challenged or found invalid later, which is why many people have an attorney review the document before it is signed.
Can I write my own will by hand?
Yes. West Virginia recognizes a will written entirely in the testator's own handwriting, known as a holographic will, without the usual two-witness requirement. If any part of the will is typed or printed, the standard signing and witnessing rules generally apply.
Does having a will mean my estate skips probate?
No. A will works within the probate process rather than around it. It tells the court who should be in charge and who should receive the property, but the estate still generally goes through the same administration process.
What happens to my minor children if I don't have a will?
A will lets a parent nominate a guardian for the court to consider, but that nomination is not automatic — a court still makes the final decision based on the child's best interest. Without a will, the court decides guardianship using other factors, without the benefit of knowing the parent's preference.
Can I change my will after it's signed?
Generally, yes, as long as you remain of sound mind. A will can be updated with a new will or a formal amendment called a codicil, and it can be revoked in the ways West Virginia law recognizes, such as physically destroying it with the intent to revoke it.
This article is provided for general informational purposes and does not constitute legal advice. Laws change, and individual circumstances vary. If you have questions about how West Virginia law applies to your situation, consult a licensed attorney.