How to make a will in West Virginia and what can happen if you don't.
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Steps to Create a Will in West Virginia
Here's a quick checklist for making a will in West Virginia:
- Decide what property to include in your will.
- Decide who will inherit your property.
- Choose an executor to handle your estate.
- Choose a guardian for your children.
- Choose someone to manage children's property.
- Make your will.
- Sign your will in front of witnesses.
- Store your will safely.
Why Should I Make a West Virginia Will?
A will, also called a "last will and testament," can help you protect your family and your property. You can use a will to:
- leave your property to people or organizations
- name a personal guardian to care for your minor children
- name a trusted person to manage property you leave to minor children, and
- name an executor, the person who makes sure that the terms of your will are carried out.
What Happens If I Don't Have a Will?
In West Virginia, if you die without a will, your property will be distributed according to state "intestacy" laws. West Virginia's intestacy law gives your property to your closest relatives, beginning with your spouse and children. If you have neither a spouse nor children, your grandchildren or your parents will get your property. This list continues with increasingly distant relatives, including siblings, grandparents, aunts and uncles, cousins, nieces, and nephews. If the court exhausts this list to find that you have no living relatives by blood or marriage, the state will take your property.
Do I Need a Lawyer to Make a Will in West Virginia?
No. You can make your own will in West Virginia, using Nolo's Quicken WillMaker & Trust. However, you may want to consult a lawyer in some situations. For example, if you think that your will might be contested or if you want to disinherit your spouse, you should talk with an attorney. Nolo's will-making products tell you when it's wise to seek a lawyer's advice.
What Are the Requirements for Making & Signing a Will in West Virginia?
To make a will in West Virginia, you must be:
- an individual 18 years of age or older, and
- of sound mind. West Virginia Code § 41-1-1.
You must make your will on hard copy. That is, it must be on actual paper. It cannot be on an audio, video, or any other digital file. (Although, see "Can I Make a Digital or Electronic Will?," below.) Type and print your will using a computer, or you can use a typewriter. West Virginia does permit handwritten wills (West Virginia Code § 41-1-3), but they are usually not a good idea.
To finalize your will in West Virginia:
- you must sign your will in front of two witnesses, and
- your witnesses must sign your will in front of you and each other. West Virginia Code § 41-1-3.
Holographic wills must be wholly in your handwriting, but they need not be witnessed. West Virginia Code § 41-1-3.
Do I Need to Have My Will Notarized?
No, in West Virginia, you do not need to notarize your will to make it legal.
However, West Virginia allows you to make your will "self-proving" and you'll need to go to a notary if you want to do that. A self-proving will speeds up probate because the court can accept the will without contacting the witnesses who signed it.
To make your will self-proving you and your witnesses will go to the notary and sign an affidavit that proves who you are and that each of you knew you were signing the will. West Virginia Code § 41-5-15.
Should My Will Name an Executor?
Yes. In West Virginia, you can use your will to name an executor who will ensure that the provisions in your will are carried out after your death. Nolo's Quicken WillMaker & Trust produces a letter to your executor that generally explains what the job requires. If you don't name an executor, the probate court will appoint someone to take on the job of winding up your estate.
Can I Revoke or Change My Will?
In West Virginia, you may revoke or change your will at any time. You can revoke your will by:
- cutting, tearing, burning, obliterating, canceling, or destroying your will or your signature with the intent to revoke your will
- ordering someone else to cut, tear, burn, obliterate, cancel, or destroy your will or signature in front of you
- making a new will that says it revokes the old will, or
- making another writing that says it revokes the old will while following the same formalities you used to make your original will. West Virginia Code § 41-1-7.
If you and your spouse divorce (or if a court determines that your marriage is not legal), West Virginia law revokes any language in your will that leaves property to your spouse or names your spouse to be your executor. This rule does not apply if you specifically state in your will that divorce should not affect the provisions in your will or if you happen to remarry your spouse. West Virginia Code § 41-1-6. If you have any concerns about the effects of divorce on your will, see an estate planning attorney for help.
If you need to make changes to your will, it's best to revoke it and make a new one. However, if you have only very simple changes to make, you could add an amendment to your existing will – this is called a codicil. In either case, you will need to finalize your changes with the same formalities you used to make your original will (see above).
Can I Make a Digital or Electronic Will?
In a handful of states, you can make a legal will digitally—that is, you can make the will, sign it, and have it witnessed without ever printing it out. Although such electronic wills are currently available in only a minority of states, many other states are considering making electronic wills legal. Virginia currently doesn't allow e-wills, but that may change in the future.
Where Can I Find West Virginia's Laws About Making Wills?
You can find West Virginia's laws about making wills here: West Virginia Code Chapter 41 Wills.
Ready to create your will?