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West Virginia Inheritance Laws

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Death in the family can be fraught with stress and disputes. For many residents in the Mountain State, the turmoil can be over soon, while for others, it may take a court battle to resolve it. 

Take, for example, the estate of Jacqueline Timmis, who suddenly died without leaving a will. Richard Timmis, the surviving husband, filed a petition at Doddridge County’s circuit court to be appointed as estate administrator, although the couple had already separated pending a divorce order. 

The court turned down the petition and instead appointed the deceased’s father as administrator. It cited the fact that Richard was the defendant in a misdemeanor domestic battery charge filed by his then-living wife. 

In 2023, the husband submitted an appeal at the Intermediate Court of Appeals and won. 

Cases like this show why it's important for everyone to understand West Virginia inheritance laws and have an estate plan. 

This article aims to inform the general public about the basics of inheritance laws in the Mountain State. Even though not every person’s estate may end in disputes, it is best to have a general understanding of how these laws work. Educating oneself is always a good investment, especially in legal matters.

What Happens if Someone Dies With a Will in West Virginia?

The will, along with the death certificate, must be submitted to the probate court where the testator — the person who created the will — died or last lived.

This has to be done within 30 days after the testator’s death. Failure to do so, without any valid reason, may lead to misdemeanor charges. 

The submission initiates what is called the probate process. More details on this will be discussed later in this article. 

What Is Considered a Valid Will?

Legal formalities must be followed for a will to be considered valid. These are:

  • Age. The testator must be at least 18 years old.

  • Actual signature. The testator must sign the will. Digital signatures are not acceptable

  • Written. The will must be in a written document. Oral and video wills are not allowed. Handwritten ones, including holographic wills (handwritten but with no witnesses), are considered valid, but e-wills are still not acceptable in West Virginia.  

  • Witnesses. The testator must sign the will in front of two witnesses who are not beneficiaries. These witnesses must sign the will as well. 

  • Sound mind. The testator must also be mentally able enough to know the purpose of the will, the assets they own, and to whom these assets will be given. 

Additional Considerations

In West Virginia, a will that is not notarized is still considered legal. If such is the case, the probate court will have to contact witnesses first before accepting it. This adds to the delay in the legal process. 

The will must also name an administrator who will see to it that the will is carried out upon the testator’s death. If none are named, the probate court will choose one. 

If the person making the will lives outside of West Virginia but owns property in the state, their will must follow West Virginia's legal requirements to be valid. 

Updating or Canceling a Will

A will in West Virginia can be changed by adding what is legally known as a codicil or a supplementary document. However, this is only recommended for minor changes to the will. 

For major changes, the will can be physically destroyed or revoked by creating a new one that specifically indicates the revocation of the old will. 

A divorce can also revoke the beneficiary and administrator status of a surviving spouse, unless the will makes provisions for such a condition. This means the divorced surviving spouse can no longer inherit something based on the will and cannot be appointed administrator unless otherwise stated. 

Contesting a Will

One must have a relationship with the deceased or a financial stake in their estate to be able to contest a will. These persons, often referred to as interested parties, are considered to have legal standing. 

Interested parties can be the deceased’s:

  • Spouse.

  • Children.

  • Relatives, such as parents, siblings, or cousins.

  • Creditors.

In addition, they must have a legally accepted reason to contest a will:

  • Lack of mental capacity - This means the testator was too sick or mentally impaired to understand what they were doing or what the contents of the will were. 

  • Undue influence - If the testator was unable to exercise their own free will when creating the will because of another person’s influence, undue influence is said to have happened. Some examples of undue influence include coercion, manipulation, or placing a gun on the testator's head. 

  • Improper execution - Not following the required legal formalities in will creation is considered improper execution. One example of this is having witnesses who are also beneficiaries of the will. 

  • Fraud - This happens when another person who wants to benefit from the will provides the testator with false information. 

The interested party in West Virginia must file the will contest in probate court within six months after the release of the probate order. This deadline can be extended depending on the interested party’s case — for example, if they are incarcerated, still a minor, or a non-resident without prior information about the case. 

Normally, challenging a will is a difficult process, no matter how strong a person’s claim is, because the burden of providing proof rests on the claimant. An example of this is Cale v. Napier, an undue influence case in 1991. The claimants were five children disinherited from a will, while the defendants were the beneficiaries of the will: the deceased’s child caregiver and the other three children.  

The initial verdict by the Circuit Court of Wood County ruled in favor of the defendants. However, the claimants ultimately won the case when it was brought to the Supreme Court of Appeals of West Virginia. The court ruled that the claimants had the right to a jury and were able to provide sufficient proof of undue influence by the caregiver. 

If you believe there are problems with a will and you have a legal right to contest it, talk to a West Virginia lawyer

What Happens if Someone Dies Without a Will in West Virginia?

If someone dies without a will, he or she is said to die intestate. In this case, their assets have to be distributed in accordance with West Virginia intestate succession laws.

The following table outlines different intestate share scenarios:

If the deceased is survived by:

Who gets how much

Spouse only

Spouse receives all

Children only

Children receive all

Parents only

Parents receive all

Siblings only

Siblings receive all

Spouse with descendants only from the marriage with the deceased

Spouse receives all

Spouse with descendants from the marriage with the deceased and 

the spouse’s children from another marriage

Spouse receives ⅗ of the assets

The children from the spouse's and deceased’s marriage receive the remaining balance

Spouse with deceased’s descendants from another marriage

Spouse receives ½ of the assets

The deceased’s descendants receive the remaining balance

Spousal Rights

A surviving spouse has the right to decide against the share stated in the will or the intestate share and instead take a spousal elective share.

This share value is based on a set of schedule that depends on the marriage duration as a percentage of the augmented estate. This said estate is the sum of the following amounts:

  • The deceased’s:

  • Assets are reduced by funeral costs, administrative expenses, claims, and property exemptions. 

  • Non-probate transfers to others or “reclaimable” estate.

  • Non-probate transfers to the spouse, excluding homestead and other property exemptions.

  • The spouse’s separate property

Assets like pensions, life insurance, and retirement accounts are non-probate transfers if they have a designated beneficiary other than the spouse. These assets are not included in the augmented estate. 

The schedule is outlined below:

Length of Marriage

Elective Share

Less than a year

Supplemental amount

1 year

3% of the augmented estate

2 years

6% of the augmented estate

3 years

9% of the augmented estate

4 years

12% of the augmented estate

5 years

15% of the augmented estate

6 years

18% of the augmented estate

7 years

21% of the augmented estate

8 years

24% of the augmented estate

9 years

27% of the augmented estate

10 years

30% of the augmented estate

11 years

34% of the augmented estate

12 years

38% of the augmented estate

13 years

42% of the augmented estate

14 years

46% of the augmented estate

15 years or more

50% of the augmented estate

The supplemental amount indicated in the table is equal to $25,000 deducted by:

  1. The amount given to the spouse through non-probate transfer.

  2. The value of the spouse’s separate property.

  3. The amount given to the spouse through the will or intestacy. 

  4. What was transferred through the spouse but was otherwise disclaimed if (a) and (b) are less than $25,000.

Children’s Rights

In general, only legal children are allowed to inherit a part of the deceased’s assets. For most families, this can be a straightforward process, but for others, it may be confusing. 

These considerations may be useful in determining a child's inheritance rights:

  • Children born out of wedlock - These children can inherit if the paternity was determined before and after the testator’s death. However, there are various time limits to paternity determination after death. For example, the confirmation of paternity must be conducted within six months after death. 

  • Adopted children - Legally adopted children have the same rights as biological children. Foster children or stepchildren who have not been legally adopted do not have inheritance. 

  • Post-death children - Children still in the womb when the testator died will also inherit a share. 

  • Grandchildren - They may inherit if their parents (or the deceased’s child) are no longer alive to get their share. 

The Rights of Other Surviving Relatives

If the deceased is not married or childless, their estates can go to their closest living relatives. Depending on the situation, these relatives can be parents, siblings, aunts, uncles, nephews, or cousins and their descendants. 

Estates With No Heirs

If the deceased does not have heirs, their assets will be forfeited to the state if there are no rightful claimants.

Real property such as houses, land, and farms will be up for public sale. Proceeds will be directed to the West Virginia general school fund. Valuable personal property, such as jewelry, will also undergo a public sale, with the proceeds going to the West Virginia general revenue fund. 

Unique Situations in West Virginia Inheritance Law

Some situations in West Virginia do not fall neatly into the above mentioned scenarios. These guidelines should be kept in mind:

  • Citizenship - The citizenship or legal status of a relative is not a hindrance to inheritance. 

  • Afterborn relatives - Those still in the womb when the testator died can inherit something if they live for at least 120 hours.

  • Half-relatives - Half-relatives have the same inheritance rights as “whole” relatives. For example, a decedent’s stepbrother has the same rights as their biological siblings. 

  • Advancements - Any gifts given to a beneficiary by the testator before their death may not be included in the said beneficiary’s inheritance share. This depends on the testator and the beneficiary’s arrangement. 

  • Same-sex marriages - Surviving spouses from same-sex marriages have benefited from the same inheritance rights as traditional marriages since West Virginia legalized same-sex marriage in 2014. 

Common-Law Marriages

Common law marriages, which involve couples not having a marriage license but cohabiting as married couples do, are not legal in West Virginia. According to the state’s domestic relations laws, there is no married legal status for a couple with no marriage license. 

This goes to say that the surviving half of a cohabiting couple may not be considered a legal spouse. 

West Virginia Probate Process

In the Mountain State, the probate process is commonly known as settling the deceased’s estate. It typically involves:

  • Verifying the validity of the will.

  • Paying off creditors.

  • Identifying and distributing assets under the deceased’s name.

It is initiated by submitting the will in person at the probate court of the county where the testator died. Keep in mind that court rules vary from county to county. It is best to consult a probate lawyer in West Virginia to avoid issues with compliance. 

If there is no will, any of the deceased’s heirs may file a petition in probate court to serve as the administrator. Such an heir must also follow various legal steps before qualifying as an administrator. 

Generally, the following processes happen successively during probate:

  1. Appointment of the administrator.

  2. Appraisal of the deceased’s estate.

  3. Settling the deceased’s debts and creditor claims.

  4. Closing the estate.

  5. Distribution of the assets to heirs.

The court has varying degrees of involvement in this process, depending on the size of the estate and the case details. 

The time it takes to settle an estate depends on different factors and deadlines, which include the following:

  • The deceased’s creditors are given 60 days to file claims against the estate in a standard probate process. 

  • An estate must be closed within five years

Non-probate Assets

It is important to note that some assets do not need to pass through probate. Assets that already have named beneficiaries are considered non-probate assets, which can be:

  • Life insurance proceeds.

  • Properties held in trust.

  • Pay-on-death bank accounts.

  • Retirement benefits such as 401(k)s and IRAs.

Additionally, non-probate assets include those jointly owned by the deceased and the surviving spouse through tenancy by entirety arrangements or survivorship rights. These assets include real estate property and joint bank accounts. 

Small Estates Act

Signed into law in 2021, the WV Small Estate Act makes it easier for eligible families to settle an estate quicker and more cost-efficiently than traditional probate. The eligibility requirement is having probated properties such as:

  • Personal property worth no more than $50,000 and/or

  • Real estate property worth no more than $100,000.

To start his simplified process, you need to fill out an affidavit and submit required documents, including the will if there is one. It also follows certain deadlines, including:

  • 60 days after death, if there is no will.

  • 30 days after death if there is a will, but 60 days if no administrator is named yet.

Closing the Estate

In West Virginia, an estate can be closed either through:

  • Final settlement: The administrator files a form that reports everything the administrator has done and submits it to the court’s fiduciary commissioner for approval. The report contains, among others, details on paid claims, revenues from estate sales, and receipts for paid expenses.   

  • Waiver of final settlement: In this procedure, the executor and the heirs sign the Waiver of Final Settlement Form. The form contains information that states that the 60-day period for creditor claims has passed, there are no unpaid claims, and all beneficiaries have been informed of their share. 

When any of this settlement process is carried out, the fiduciary commissioner will issue an approval. After paying the administrator and any final expenses, the remaining assets can be distributed to inheritors and the estate will be considered closed. 

Does West Virginia Impose Inheritance and Estate Taxes?

There are neither inheritance taxes nor estate taxes in West Virginia. However, if the deceased owned properties in bordering states such as Maryland, Kentucky, and Pennsylvania, such properties may be taxed upon being inherited.  

There are also other taxes that must be considered in the Mountain State:

  • Federal estate tax - Only estates worth more than $12.92 million as of 2023 are subject to federal estate taxes, which range from 18% to 40%. The taxes must be filed nine months after death, although a six-month extension can be requested before the nine-month period lapses. 

  • Final state and federal income tax - The deceased’s final state and federal income taxes are due on Tax Day of the year after death. 

  • Federal estate/trust income tax - Estates or trusts that earn an annual gross income of at least $600 will owe federal income tax on that income. Additionally, there may be quarterly tax requirements required by the IRS. These taxes are to be submitted on Tax Day of the year after death. 

Legal Resources Related to Inheritance Law in West Virginia

West Virginia State Bar

The State Bar provides an array of services for the public. These include a Lawyer Referral Service for different areas of the law, including inheritance-related areas such as estate planning, real estate, and elder law. The Bar also hosts Tuesday Legal Connect, a free consultation service manned by volunteer lawyers offering general legal guidance to the public.  Call 1-800-642-3617 every Tuesday from 6:00 p.m. to 8:00 p.m. for the service. 

West Virginia Judiciary’s Public Resource

Inheritors can go online and check out the West Virginia Judiciary’s resources for the public. On the website, they can find court forms, details on the Law Library, court accessibility assistance, and remote hearing information. 

Legal Aid of West Virginia

This nonprofit organization provides free legal information and services and has 12 locations, reaching all 55 counties in the state. Note that walk-in applications to these locations are currently accommodated for those with urgent court hearings. To apply for help, call 866-255-4370 or submit an application online. West Virginians who are thinking of self-representing themselves in court can peruse important information on toolkits, going to magistrate court, and making preparations

County Government and Probate Court Websites

The state government website has a directory that provides a link to the websites of the 55 county governments. Through this resource, one can check the address and contact information of the county courthouse. Additionally, probate courts in counties such as Kanawha, Jefferson, and Monroe have issued general guides online.

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