Estate planning rules in West Virginia

Wills and intestate inheritance

West Virginia law provides for a written will signed by the testator. A West Virginia will that is not wholly handwritten also has two competent witnesses present together who subscribe in the testator's presence and each other's presence.

A person with custody of a West Virginia will has thirty days after learning of the testator's death to deliver the document to the named executor or to the county court clerk having probate jurisdiction.

West Virginia intestacy gives a surviving spouse the entire estate in specified circumstances. The West Virginia spouse's share is three fifths when the decedent's descendants are shared but the spouse has other descendants. The West Virginia spouse's share is one half when any surviving descendant is not the spouse's descendant.

A West Virginia intestacy provision passes property first to descendants by representation, then to parents, and then to descendants of the decedent's parents by representation if no descendant or parent survives. West Virginia divides an estate passing through grandparent lines equally between the paternal and maternal sides.

Small estates and transfer on death deeds

West Virginia defines a small estate through a $50,000 limit on probate personal property and a $100,000 limit on in-state real estate. West Virginia presumes real estate fair market value is 167 percent of assessed value.

A West Virginia domiciliary's small estate with no probate real property interest may be administered upon affidavit without appointing a personal representative.

A West Virginia transfer on death deed is recorded before the transferor's death with the county commission clerk in the county where the property is located.

A single beneficiary's interest under a West Virginia transfer on death deed is contingent on surviving the transferor and lapses if the beneficiary does not survive. A West Virginia transfer on death deed beneficiary takes property subject to conveyances, encumbrances, mortgages, liens and other interests existing at the transferor's death.

Trusts and powers of attorney

West Virginia recognizes trust creation through an owner's declaration that the owner holds identifiable property as trustee. West Virginia trust creation also includes exercising a power of appointment in favor of a trustee and entry of a court order.

A West Virginia agent under a durable power of attorney may create or fund a trust during the grantor's lifetime if the power expressly authorizes the action. West Virginia permits expressly authorized trust creation by the agent without the grantor having capacity.

A West Virginia power of attorney is effective on execution unless the principal specifies a future date, event or contingency. West Virginia provides for signature by the principal or another individual acting in the principal's conscious presence and at the principal's direction, with acknowledgment before a notary or other authorized official.

A West Virginia power-of-attorney agent has 30 days after a proper accounting request to comply or explain why more time is needed. The West Virginia agent then has an additional 30 days to comply.

Guardianship and conservatorship

West Virginia guardianship and conservatorship decisions include the person's limitations, maximum self-reliance and less restrictive alternatives such as advance directives. A West Virginia petition may be filed by the alleged protected person, a caregiver or the care facility, among others.

A West Virginia guardianship petition identifies agents named in durable powers of attorney, medical powers of attorney or living wills. Copies of those documents accompany the West Virginia petition if available.

Thresholds and rates change. Check the state's own current figures.

Common questions