Estate Planning – West Virginia Senior Legal Aid, Inc. (2022)

What happens to my digital media like pictures and profiles on Facebook, Instagram, and Twitter after I die?

It depends. Different companies have different policies regarding what happens to a person’s online presence after they die. For example, Facebook’s policies frequently change, but currently if Facebook is notified of a person’s death, the company presents the family of the deceased person with two options. The family can either close the account (which would mean losing all the pictures and other digital memorabilia) or turn that page into a memorial page. The executor of a will does not have access to your digital media under any of the companies’ policies at this time.

Some companies suggest making digital or hard copies of photos or other memorabilia associated with your accounts in order to ensure that treasured memories will not be lost upon your death. Another suggestion is to create a list of passwords for your accounts and give that list to a very trusted source who you give permission to access your accounts upon your death. Please note however, that the second option creates a potential for abuse of that information.

For more information, see: www.aarp.org/home-family/personal-technology/info-2014/protect-personal-online-data.html (last visited Jun 4, 2015).

What is a pre-paid funeral contract?

With a pre-paid funeral contract, you can take care of your funeral expenses and make decisions regarding how you want your funeral to be handled. Some contracts work like an insurance policy; you pay installments until your death, and you get the services no matter how much you pay. Other contracts require you to pay either a lump sum or a total amount before you are entitled to the burial goods and services. Before you sign a contract, carefully read the document and be aware of its provisions.

In the past, senior citizens have been victimized by fraudulent pre-paid funeral contracts. If not regulated, the seller of the contract could easily spend your money leaving no money for your funeral services when you need it.

West Virginia regulates pre-paid funeral contracts by law. A person selling funeral services must be licensed and have a certificate from the state authorizing her to sell pre-paid funeral contracts. In addition, sellers of pre-paid funeral contracts cannot solicit customers at hospitals, nursing homes or rest homes, nor can they solicit relatives of persons whose death is pending.

Your contract must be protected by an insurance policy or a trust fund. In a trust fund situation, the seller deposits your money in a trust. The trust is managed by a trustee. The trustee must be impartial and protect your money. Of course, it will cost money for the trustee to manage the trust. The law allows the seller of the pre-paid funeral contract to use 10% of your money to pay the trustee and other costs.

When the trustee or insurance company receives a copy of your death certificate, and is satisfied that the funeral services have been performed, he or she pays the seller of the contract. If the funeral home does not provide the services, the money must be returned to the estate of the deceased within 10 days.

If you want to cancel a pre-paid funeral contract before your death, you may do so. You have to notify the seller in writing. The seller must then notify the trustee within 10 days. The trustee must return your money within 30 days.

When you buy a pre-paid funeral contract, make sure that your contract is filed with the Attorney General’s office. When you file your contract, you will have to pay a recording fee that goes into a fund called the Preneed Guarantee Fund. The fund reimburses people who lose money in a pre-paid funeral contract. The fund is used only for trust fund contracts. The insurance commission handles contracts that are protected by an insurance policy.

If a seller violates a law in this area, criminal charges may be filed against him or her. If you think that a funeral home has committed a violation, contact the Consumer Protection Hotline in the Attorney General’s Office at 1 (800) 368-8808.

For more information, see: W. Va. Code §§ 47-14-1 to -14 (2015); National Funeral Services, Inc. v. Rockefeller, 870 F.2d 136 (4th Cir.), cert. denied, 493 U.S. 966, 110 S.Ct. 409, 107 L.Ed.2d 374 (1989).

My spouse died and his/her name is still on the deed to our home. Do I have to change the deed?

No. Depending upon how the property was owned, a number of procedures will take care of the ownership of your home. The different procedures depend on whether the property is either jointly owned or completely owned in the name of your spouse, and whether or not there is a will.

If the property is jointly owned, meaning you and your spouse are joint tenants, it will be owned either with or without right of survivorship. If it is owned with survivorship, the entire property automatically transfers to you as the surviving spouse when your spouse dies. Anyone who looks at the deed will know that if either you or your spouse has died, then the other spouse will possess the property in full ownership.

If the property is jointly owned but without survivorship, the deceased spouse’s portion will pass through the probate process. In the probate process, the court must decide whether the will is valid. This procedure is often called proving the will. You will then acquire the property after the probate process. As a result, a person looking just at the deed cannot know that you now have complete ownership. Only the will or probate records will reflect the change in ownership.

If there is a will, the will records the transfer of the property. If there is no will, the probate records themselves will reflect that you now have complete ownership because the property passed through intestate succession. Dying intestate is dying without a will.

At no time are you required to go and change the deed. The probate records, the will, or the deed itself will reflect your complete ownership. However, if you transfer the property, your new deed should state how you acquired the property in order to maintain clarity in the chain of title. Drafting a deed may seem like something you can do yourself without hiring an attorney, but paying a few hundred dollars for an attorney to handle the matter may turn out to be a great investment if he or she identifies a defect in your title.

For more information, contact your local clerk of the county commission, or see: W. Va. Code § 41-5-17 (2015); Cary v. Riss, 189 W. Va. 608, 433 S.E.2d 546 (1993); see generally, W. Va. Code §§ 40-1-8 to -9 (2015).

What is a living trust?

A living trust is a written document that allows you to control the distribution of your property after your death, like a will. It differs from a will in that a living trust takes effect during your lifetime, as soon as you transfer property or money into the trust’s name.

As the grantor or creator of the trust, you put a certain amount of money or property into the trust for a beneficiary. You also name someone to be the trustee. The trustee is responsible for managing the property or money in the trust while you are alive. Any responsible individual can be a trustee; you can name yourself, another person, or an entity, such as a bank. In a living trust, you also name a backup trustee to manage the property and distribute it according to your wishes after your death. The role of the backup trustee is similar to that of the personal representative named in your will.

Living trusts are particularly appealing to some individuals because, unlike a will, property or money placed in a living trust does not generally have to go through probate. In addition, you can transfer money more privately using a living trust. A will is a public document as soon as it is submitted for probate. Another advantage of a living trust is that you can name someone to manage your assets in the event that you become unable to do so.

(Video) How To Make a Valid Will In Less Than Four Minutes

A disadvantage of having a living trust is that you must transfer money or property into the trust when you create it. Therefore, you may find yourself unable to get to this money if you need it. AARP cautions against companies that use telemarketing and other techniques to sell living trust “kits” or “packages.” The AARP notes that these companies often charge more than an actual attorney would charge and greatly exaggerate the costs and delay of our state’s probate system. Often, the people who write these documents are not attorneys, and even if they are, they may not be licensed in West Virginia. In such circumstances, the living trust created by these people may not conform to state law.

To be effective, a living trust should be individualized to your particular needs and wishes. Living trusts sold over the phone in a package or kit are generally not personalized to handle your particular situation adequately. Sometimes, people selling these kits will imply that the AARP endorses their product; however, the AARP does not sell or endorse any living trust product.

A living trust can be an effective estate planning tool for people in certain kinds of circumstances; however, it is not appropriate for most people. Whether a living trust is right for you depends upon your particular circumstances, and consulting a trust attorney for personalized advice can not only help you decide whether a trust is right for you, but how to be sure all the assets you want to include in a trust are properly titled.

For more information, see: AARP, The Truth About Living Trusts, http://www.aarp.org/money/estate-planning/info-04-2009/truth_about_living_trusts.html (last visited June 4, 2015).

Can I administer a small estate by myself, or should I get an attorney?

The West Virginia legislature has made it much easier for a person to administer a small estate without an attorney. If the estate is small (under $100,000) or there is only one beneficiary and there are no outstanding claims, you may be able to settle the estate by yourself.

When the estate is valued under $100,000 but there is more than one beneficiary, an administrator or the executor of the will is appointed. Then the executor must fill out an appraisement which puts a value on all the deceased’s assets. When the administrator turns in the appraisement, the county clerk will put an ad called a Notice of Pending Estate in the local newspaper once a week for two successive weeks. The administrator must send a copy of the notice to the surviving spouse, beneficiaries, trustees, and/or creditors of the person who died. If the surviving spouse, beneficiaries, etc., have claims for payment, they must make them within 30 days of receiving the notice. 60 days after the first ad is published in the local newspaper, if there are no claims for payment filed against the estate, the estate will be deemed settled.

When there is only one beneficiary, regardless of the size of the estate, there is a simplified procedure as well. After the appraisement is filed, the clerk runs a Notice of Unadministered Estate in the newspaper. If after 60 days there are no claims for payment against the estate, the estate is automatically settled. In actuality, there is no administration of the estate in this situation.

Although administration of estates is easier now than it used to be, there is always the possibility that complications may arise. If there are outstanding claims, and a simple administration is not possible, you will want to have the assistance of a lawyer even if the estate is small. In addition, even if there are no complications, it is wise to consult a lawyer to see if it is safe for you to proceed alone.

For more information, see: W. Va. Code §§ 44-2-1 to -29 (2015); W. Va. Code §§ 44-3A-1 to -44 (2015); W. Va. Code § 44-1-14 (2015); W. Va. Code § 44-3A-4a (2015); In re Scott’s Estate, 122 W. Va. 352, 9 S.E.2d 528 (1940); In re Estate of Thacker, 152 W. Va. 455, 164 S.E.2d 301 (1968).

What is a self-proving will?

A self-proving will has sworn statements called affidavits attached to the will. These affidavits are from the witnesses. They state that, according to the witnesses, the will was signed by the testator and that the testator had the mental capacity to execute a will. A notary public then certifies that the affidavits are signed by the witnesses.

It is a good idea to have these affidavits attached to your will. When a will is probated, it must be proved. To prove a will, a court must determine that the will meets the requirements set by law. The will must be proven before the instructions in the will can be followed. One requirement set by law is that a testator must have the mental capacity to execute a will. Another requirement is that the will must be signed by the testator in front of two witnesses. The witnesses would then be required to testify at probate that the testator did have the mental capacity to execute the will.

However, if you have a self-proving will, the witnesses are not needed for probate. The affidavits substitute for having actual testimony from the witnesses. A self-proving will helps avoid the difficulty of tracking down witnesses to a will.

If the will is ever contested, however, the affidavits cannot be used. That is to say, if anyone objects and says that the testator did not have the mental capacity to execute the will, then the affidavits are not adequate. In such situations, the witnesses are required to testify.

For more information, see: W. Va. Code § 41-5-15 (2015); Christopher Vaeth, Annotation, Proper Execution of Self-Proving Affidavit as Validating or Otherwise Curing Defect in Execution of Will Itself, 1 A.L.R.5th 965 (1992); Thomas M. Fleming, Annotation, Sufficiency of Evidence to Support Grant of Summary Judgment in Will Probate or Contest Proceedings, 53 A.L.R.4th 561 (1987); Rush v. Brannon, 82 W. Va. 58, 95 S.E. 521 (1918).

Does my will become invalid if a witness to my will dies?

No. When a witness signs a will, he or she is saying that the testator has testamentary capacity. This signature creates a presumption that the testator had the necessary mental capacity when he or she signed the will. If the witness dies, this presumption stands and the will is still good.

However, at probate, a will must be proved. To prove a will, a court must determine that the will conforms to the guidelines set by law. One guideline is that the testator must have had the mental capacity to execute a will. Witnesses are needed to testify to the testator’s mental capacity at the time the testator signed the will. Of course, if the witness has died, then he or she cannot testify. The presumption still remains, but clearly the will is not as strong as if the witness could testify.

One way to avoid this problem is to have a self-proving will. A self-proving will has signed statements called affidavits attached to the will. These affidavits allow you to avoid having to track down witnesses for the probate, even if they are still living.

For more information, see: W. Va. Code § 41-5-15 (2015); Martin v. Thayer, 37 W. Va. 38, 16 S.E. 489 (1892); 20 Michie’s Jurisprudence Wills § 37 (2009).

Is a will that is executed in another state valid after I move to West Virginia?

A will that you executed in another state may not be valid in West Virginia. A will is executed when it is signed by the testator and by witnesses. Wills must conform to the law of the state where the will is probated; the law of the state where a will is created doesn’t matter if the will is probated in a different state. If the laws differ, a valid will in another state may not be valid in West Virginia.

For example, say you have your will executed in another state. That state’s law may not require witnesses to sign a will signed by the testator. If you move to West Virginia and the will is not signed by witnesses, it may no longer be valid because West Virginia requires that most wills be signed by two witnesses.

If you have a will that you executed in another state, you should check with an attorney in West Virginia to see that all of the requirements for a will in West Virginia are met.

For more information, see: In re Estate of Briggs, 148 W. Va. 294, 134 S.E.2d 737 (1964); Woofter v. Matz, 71 W. Va. 63, 76 S.E. 131 (1912); Lotz v. Atamaniuk, 172 W. Va. 116, 304 S.E.2d 20 (1983); 20 Michie’s Jurisprudence Wills § 3 (2009).

(Video) Trusts 101 - Estate Planning With Trusts

Can I make a will in West Virginia if I own property in another state?

Yes, but the law governing the property may differ depending on what type of property you have. Real estate is treated differently under the law than other types of property. Real estate will transfer according to the law of the state in which the land is located. All other types of property will transfer according to the law of the state where the person lived.

If you own real estate in another state, you must be certain of whether that state’s law will allow the property to transfer according to your will. You should check with an attorney practicing in the area where your property is located to see if your will is valid there.

For more information, see: In re Estate of Briggs, 148 W. Va. 294, 134 S.E.2d 737 (1964); Woofter v. Matz, 71 W. Va. 63, 76 S.E. 131 (1912); Lotz v. Atamaniuk, 172 W. Va. 116, 304 S.E.2d 20 (1983); 20 Michie’s Jurisprudence Wills § 3 (2009).

What is my share of my spouse’s estate if my spouse dies without a will?

Dying without a will is called dying intestate. In most circumstances, a spouse will receive all of the estate when the other spouse dies intestate. However, there are two circumstances in which the surviving spouse will not take the entire estate.

First, the surviving spouse will take less than the entire estate when he or she has a child from another marriage and the couple has children together. An example of this situation would be where the deceased spouse, in addition to having children with you, is a step-parent of your child. In these situations, the surviving spouse takes 3/5 of the estate, and the children common to you both (but not step-children) take 2/5.

The other instance occurs when the spouse who dies has a child from another marriage. This situation would occur if you, as the surviving spouse, are the step-parent of the deceased spouse’s child. In such circumstances, the child would take 1/2 and the surviving spouse would take 1/2.

When a person dies intestate, any property that does not go to the surviving spouse will pass down in the following order: descendants, parents, brothers and sisters, grandparents, and other relatives.

For more information, see: W. Va. Code § 42-1-3 (2015); John W. Fisher II, Intestate Succession and Elective Share Law, West Virginia Continuing Legal Education (1993).

My spouse died and I was almost completely left out of my spouse’s will. Is there anything I can do?

The law protects surviving spouses. If you are not satisfied with your share under the will, you may elect against the will, which means you may petition the court to disregard the will and award you an amount of your spouse’s estate set by law. You may only petition for this elective share within nine months of your spouse’s death or within six months of the probate of the estate, whichever is later.

The legislature passed laws to prevent one spouse from disinheriting another. One protection from disinheritance is the elective share provision. Another is the notification requirement.

The elective share provision allows a spouse to elect against the deceased spouse’s will to collect an amount of the estate set by law. The amount a spouse can take depends on the length of the marriage. After 15 years, the spouse can collect the largest amount–50%. The amount is taken from the augmented estate. Many factors are considered in determining what makes up the augmented estate, and then in determining how much would go to the surviving spouse. The augmented estate includes all property from which the deceased benefitted. The surviving spouse’s wealth is also considered.

The notification requirement also protects surviving spouses. A person who transfers land must notify his/her spouse. This notice is required so that your spouse cannot give his/her land away without your knowing about it.

For more information, see: W. Va. Code §§ 42-3-1 to -2, 42-3-4, 42-3-7, 43-1-2 (2015).

Do I have to include my spouse in my will?

You do not have to include your spouse in your will, but it doesn’t necessarily mean that your spouse cannot get anything from your estate. If you leave your spouse out of your will, your spouse may be able to elect against the will. Elective share provisions are part of our law that attempts to prevent the disinheritance of a spouse. This means that your spouse may be able to collect a percentage of your estate as set by law. The amount the spouse will collect is called the elective share amount.

The elective share amount depends on the number of years that you have been married. The highest percentage your spouse can collect from your estate is 50%, which is the share allotted after 15 years of marriage.

The law is designed to protect surviving spouses. Thus, if you choose to leave your spouse out of your will, your spouse may be entitled to a share of your estate anyway. If this happens, it could leave others in your will with less than you had intended.

For more information, see: W. Va. Code §§ 42-3-1 to -3) (2015); Kidwell v. Kidwell, 189 W. Va. 307, 431 S.E.2d 346 (1993); Mongold v. Mayle, 192 W. Va. 353, 452 S.E.2d 444 (1994). 80 Am. Jur. 2d Wills §1401, Components of elective share; expenses; 97 C.J.S. Wills §2146.

Do I have to leave something in my will to my children?

No. In West Virginia, a person may include or exempt any person in his/her will. Thus, children may be excluded from a will. However, if a spouse is disinherited, that spouse may be entitled to claim an amount of inheritance set by law.

For more information, see: W. Va. Code §§ 41-1-1, 42-3-1(a) (2015).

Do I have to register my will at the courthouse?

No. Wills do not have to be registered before probate in West Virginia. The will is filed with the clerk of the county commission after the death of the testator. Wills are kept by the testator until death. If someone else has the will, that person must deliver it to the clerk or to the executor named in the will within thirty days after the death of the testator is known to him. If the will is delivered to the executor, the executor must then deliver it to the clerk within a reasonable time or offer it for probate. If delivered to the clerk, the clerk will notify both the executor and the people named in the will once the will is received.

(Video) 9 Reasons NOT To Protect Assets From Nursing Home

For more information, see: W. Va. Code §§ 41-5-1 to -3 (2015); Cary v. Riss, 189 W. Va. 608, 433 S.E.2d 546 (1993); In re Winzenrith’s Will, 133 W. Va. 267, 55 S.E.2d 897 (1949); 80 Am.Jur. 2d Wills § 915 (2012); 95 C.J.S. Wills § 474 (2012)

Where is the best place to keep my will?

It is important to choose a safe place where someone can easily locate the will after your death. A safe deposit box is a good, safe place to keep a will, but only if your heirs know the will is there and can get to it after you die.

When choosing a bank in which to rent a safe deposit box, you need to find out how the bank will control the box after your death. Some banks will not allow anyone except a court-appointed administrator to open the box to retrieve the will. This policy may cause difficulty and delay in settling your estate. Other banks allow a family member to remove the will in the presence of bank officials. If your will is kept in a safe deposit box at the bank you should make sure the executor named in your will has access to it after your death.

Is there a way to transfer my house and land after I die without it going through probate?

Yes. As of June 1, 2014, a new law allows a property owner to write a deed with a “transfer on death” beneficiary. It creates an automatic transfer to the beneficiary upon the death of the property owner similar to a joint tenancy, but it is a bit different. The main difference between this deed and joint tenancy is that the property owner retains ALL of the rights of ownership while living, including the right to live in the house, the right to sell the house, and the right to revoke the deed altogether, among others. This new law, referred to as the Transfer on Death Deed Act, creates a way for people to pass houses and land onto their heirs while avoiding probate and Medicaid estate recovery.

The Transfer on Death Deed has a couple specific differences from a more traditional deed. First, the Transfer on Death deed must state that the transfer of land is to occur upon the transferor’s death. Second, in order for the deed to be valid, the Transfer on Death deed must be recorded in the office of the clerk of the county commission where the property is located BEFORE the transferor’s death.

This new type of deed can be largely beneficial to many seniors because they have the option to retain all of their rights of ownership in their homes and land during their lifetime so the possibility of abuse by a beneficiary is limited. Also, this type of deed is helpful for seniors who want to pass real property to their beneficiaries while avoiding probate and Medicaid estate recovery.

For more information, see: W.Va. Code 36-12-1 through 36-12-17

Will my beneficiaries have to pay taxes on their inheritance?

Maybe. Effective as of the end of 2012, Congress passed the American Taxpayer Relief Act of 2012, which provides an exemption from federal estate and gift taxes on estates with assets up to a certain value. The exemption will cover estates that contain assets worth $5 million, although this amount is indexed for inflation. As a result, the exemption, indexed for inflation, is $5.43 million per person in 2015. In addition, there are deductions for most (but not all) amounts left to a surviving spouse or to charity. In determining whether your estate is worth $5.34 million, you may need to take into account assets such as life insurance payable on your death, retirement benefits, and gifts that you made during your lifetime. If your estate exceeds the available exemption and deduction amounts, then a federal estate tax of up to 40% will be assessed on the remaining amounts.

A husband and wife each have their own $5.43 million exemption. In some cases and with proper planning, one spouse may use the exemption that his or her predeceased spouse did not use during their lifetime. (Note: this is called “portability” and means that a married couple can pass $10.86 million free of tax at this point. However, it gets very complicated if you have second marriages and such).

West Virginia does not currently have an estate or inheritance tax. Many other states, however, do have such taxes, which are imposed in addition to the federal estate tax. You may need to pay estate or inheritance taxes in another state if you are a part-time resident of that state or if you own property located in another state.

We would recommend that you consult with an attorney if you are concerned that your estate may be affected by the federal estate taxes, if you are worried about having to pay tax in another state, or if you have a complicated family arrangement (such as second spouses with children).

For more information, see: 26 U.S.C. §§ 2001-2058 (2015); The American Taxpayer Relief Act of 2012, Pub. L. 112-240.

When I die, how will my will be used to distribute my property?

Before you die, you are in charge of making sure your will is kept in a safe place or with a trusted person. Upon your death, your will is likely to be delivered to the clerk of the county commission. If someone else has your will, they must deliver your will to the executor named in the will or the clerk within thirty days after your death is known to the person in possession of your will. If your will is given to the executor, the executor must then deliver it to the clerk within a reasonable time or file a petition in court to seek appointment of your personal representative.

After your personal representative gains control to execute your will, he/she will determine what your assets are, pay off your debts, and distribute the rest of your estate to your beneficiaries. The process of your executor administering your will is called probate.

For more information, see: W. Va. Code §§ 41-5-1, et seq. (2015).

Can a beneficiary of a will also be a witness to the will?

Yes, but it wise to choose witnesses who are not beneficiaries under the will. Traditionally, the beneficiary of a will could not be a witness. Now, however, West Virginia law has a purging statute. This law allows beneficiaries to be witnesses so long as they forfeit their share of the will. Basically, the statute means that if a beneficiary is a witness, the will is still good and all the other heirs will take their shares according to the will. However, if the witness who is also a beneficiary is needed to prove the will, the beneficiary must forfeit his or her inheritance under the will for the will to still be valid.

Before property can pass according to a will, the will must be proven at the probate of the estate. To prove a will, a court must determine whether the will meets the requirements set by law. When a witness signs a will, he or she is agreeing to come back later and testify at the proving of the will. But a witness cannot testify to the validity of a will if he/she is incompetent. A witness is incompetent if the law does not allow him/her to be a witness. A witness who is also a beneficiary is competent only if he/she forfeits his/her inheritance in the will. Modern wills typically include a self-proving affidavit attached to the will signed by the witnesses so neither is required to come back and testify at the time of probate.

While at least two witnesses have to sign the will, only one is necessary to prove the will. Consequently, a beneficiary who is a witness would have to forfeit his inheritance only if the other witness cannot prove the will. Thus, it is possible to have a valid will with a beneficiary as a witness, but it is wise to avoid using beneficiaries as witnesses in order to escape any problems.

For more information, see: W. Va. Code §§ 41-1-3, 41-2-1 (2015); Webb v. Dye, 18 W. Va. 376 (1881); Davis v. Davis, 43 W. Va. 300, 27 S.E. 323 (1897).

Can a beneficiary of a will also be an executor (personal representative) of the will?

Yes. You are advised to name someone you trust to be executor, or personal representative, of your estate. Many times you also wish to include that person in your will. Naming a beneficiary to be the executor of your will is a perfectly acceptable practice in West Virginia. However, any person appointed executor has her primary responsibility to the estate. If there is any conflict between the personal interests of the executor and the interests of the estate, the executor can be removed. In addition, the executor can be sued by other heirs for acting in his or her own best interest at the expense of the estate.

(Video) How to find an attorney to help for free.

The estate is further protected by requiring an executor to post a bond equal to the value of the estate. The bond is used as security if the executor does anything improper with the estate’s assets. The necessity for this bond may be waived in the will.

Some states do require executors to be independent. If you move to another state, check the law of the state to be certain that you named an appropriate executor. In West Virginia, being a witness to a will does not mean that you cannot also be named an executor.

For more information, see: W. Va. Code §§ 41-2-3 , 44-1-3, 44-1-6 to -8, 44-5-5 (2015); Hensley v. Copley, 122 W. Va. 621, 11 S.E.2d 755 (1940); Rayburn v. Rayburn, 34 W. Va. 400, 12 S.E. 493 (1890).

What does the executor of a will do?

The executor is the person you appoint to carry out the instructions of your will. The executor of a will collects all the assets of the estate, pays off the debts, and then distributes the assets of the estate according to the will. This distribution is called the administration of the estate. Your executor need not be an attorney, and may be able to administer the estate without an attorney, depending on the complexity of the estate and distribution.

A good executor is one who will diligently and carefully handle the details of administering the probate of your estate for the benefit of your beneficiaries. Usually a close family member such as a spouse or child is named executor. However, you may name any trusted adult as executor.

For more information, see: W. Va. Code §§ 44-1-1 to -15 (2015); Smith v. Hamer, 135 W. Va. 380, 64 S.E.2d 481 (1951); 8A Michie’s Jurisprudence Executors and Administrators §§ 2, 7-11 (2009); Wanda Ellen Wakefield, Annotation, Adverse Interest or Position as Disqualification for Appointment of Administrator, Executor, or Other Personal Representative, 11 A.L.R.4th 638 (1982).

How do I update, change, or revoke my will?

How you can change your will depends on what type of will you have–general or holographic. If you have a general will (a will that has been typed and/or prepared for you by another person), you may make changes to it by writing a codicil. A codicil must conform to the same requirements needed for a will to be valid: the testator must have capacity, and the codicil must be in writing, witnessed, and signed. You cannot make interlineations or erasures of portions of your will after your will has been signed by the witnesses. If you make interlineations or erasures after the will has been signed by the witnesses, your will may become invalid.

A general will may be revoked in a number of ways. First, an old will is automatically revoked when a new and valid will is written. Second, it may be revoked through written revocation stating that the will is no longer valid. To be effective, the revocation must be executed in the same way a will would be. Third, a will may be revoked by physically destroying the will with an intent to revoke it. “Intent to revoke” means that the testator consciously and purposefully destroys the will. If a new will is not made to replace it, however, the law will presume that the testator prefers the old will to intestacy.

If you have a holographic will and wish to make changes to it, you cannot make interlineations or erasures to your will. Interlineations or erasures to your will may make it invalid. Instead, you must either re-write your entire will or obtain a valid general will. The new will automatically revokes the previous will. You can also completely revoke your prior will by physically destroying it with the intent to destroy it. However, if a new will is not made to replace it, your property will pass as described in the will you destroyed; the law will presume that you prefer that your property pass according to your old will over intestacy.

For more information, see: W. Va. Code § 41-1-7 (2015); Kearns v. Roush, 106 W. Va. 663, 146 S.E. 729 (1929); Miller v. Todd, 191 W. Va. 546, 447 S.E.2d 9 (1994); In re Estate of Siler, 155 W. Va. 743, 187 S.E.2d 606 (1972); De Campi v. Logan, 95 W. Va. 84, 120 S.E. 915 (1923); Douglas v. Feay, 1 W. Va. 26 (1864); Turner v. Theiss, 129 W.Va. 23, 38 S.E.2d 369 (1946); Nelson v. Ratliffe, 137 W. Va. 27, 69 S.E.2d 217 (1952); Black’s Law Dictionary 177 (10th ed. 2014); 20 Michie’s Jurisprudence Wills §§ 24, 26 (2010).

What is an oral will?

An oral will, also known as a nuncupative will, is a will that is spoken by the testator to a witness. Oral wills are typically not valid in West Virginia; wills must almost always be written. There are, however, two types of oral wills that are recognized as valid. Soldiers in actual military service and mariners at sea may make out an oral will. Historically, these exceptions were allowed so that soldiers and seamen could dispose of their property on their deathbeds.

For more information, see: W. Va. Code §§ 41-1-3 to -5 (2015); 20 Michie’s Jurisprudence Wills § 43 (2010).

Estate Planning – West Virginia Senior Legal Aid, Inc. (2)

What is a holographic will?

A holographic will is a will that is entirely handwritten by the testator. For a holographic will to be valid in West Virginia, there are three requirements. First, the entire will must be in the handwriting of the testator. Any words not in the testator’s handwriting will be excluded from the will. Second, a holographic will must be signed by the testator with either a signature or a mark intended as a signature. The will does not have to be signed by any witnesses. The third requirement for a holographic will is that it must have testamentary intent.

If a holographic will is never contested, the will is valid and all of the property will be distributed according to the will. However, it is important to be cautious in writing a holographic will. Because witnesses do not have to sign the will, there is no evidence to support the will if it is contested. In addition, holographic wills are often incomplete. Without the guidance of a lawyer, many people fail to effectively distribute their property and provide for all situations. In such a circumstance, your property may not be distributed as you wished.

For more information, see: W. Va. Code § 41-1-3 (2015); Dantzic v. Dantzic, 222 W. Va. 535, 668 S.E. 2d 164 (2008); In re Estate of Teubert, 171 W. Va. 226, 298 S.E.2d 456 (1982); Matheny v. Matheny, 182 W. Va. 790, 392 S.E.2d 230 (1990); Black v. Maxwell, 131 W. Va. 247, 46 S.E.2d 804 (1948); In re Estate of Briggs, 148 W. Va. 294, 134 S.E.2d 737 (1964); Guaranty National Bank v. Morris, 176 W. Va. 228, 342 S.E.2d 194 (1986); Seifert v. Sanders, 178 W. Va. 214, 358 S.E.2d 775 (1987), commented on in 90 W. Va. L. Rev. 725 (1988); Clark v. Studenwalt, 187 W. Va. 368, 419 S.E.2d 308 (1992); Charleston National Bank v. Thru the Bible Radio Network, 203 W. Va. 345, 507 S.E.2d 708 (1998); 20 Michie’s Jurisprudence Wills § 42 (2010).

What is a will?

A will is a legal declaration as to how you wish for your estate, which consists of your land, personal property, and/or debt, to be transferred after you die. There are three main types of wills recognized in West Virginia: general wills, holographic wills, and oral wills. The statutory requirements that ensure the validity of each type of will are not the same, so it is important that you understand the type of will you wish to make and the laws you must follow to guarantee that your will is valid.

For all wills, the testator must be 18 years old or older and of a sound mind at the time of creation. Wills that are typed and/or prepared for you, either using a form or the services of a lawyer, require all of the following five things to be valid:

•the testator must be of sound mind
•the testator must be 18 years old or older
•the will must be in writing
•the will must be signed by two witnesses
•the will must be signed by the testator

To be of sound mind to make a will, you must know your property, know how you are distributing your property, and know to whom you are leaving your property. Note that it takes less mental capacity to make a will than to make a deed or contract. Even if a testator lacks the capacity to perform many ordinary business transactions, as long as he/she meets the five listed criteria above, the will is valid.

The testator’s signature does not necessarily have to be the testator’s full name; a mark that is meant to be a signature is sufficient. Also, if needed, another person may steady the testator’s hand. The witnesses and the testator must all see each other sign. The witnesses do not need to know anything about the contents of the will.

(Video) Power of Attorney Explained

Remember, the five requirements listed above only apply to wills that are typed and/or prepared for you by another person. The five requirements do not apply to holographic wills or oral wills.

For more information, see: W. Va. Code §§ 41-1-1 to -10 (2015); Milhoan v. Koenig, 196 W. Va. 163, 469 S.E.2d 99 (1996) Runyon v. Mills, 86 W. Va. 388, 103 S.E. 112 (1920); McMechen v. McMechen, 17 W. Va. 683 (1881); Freeman v. Freeman, 71 W. Va. 303, 76 S.E. 657 (1912) (overruled on other grounds by Meadows v. Meadows, 196 W. Va. 56, 468 S.E.2d 309 (1996)); Barker v. Hinton, 62 W. Va. 639, 59 S.E. 614 (1907); 20 Michie’s Jurisprudence Wills §30 (2010); Rice v. Henderson, 140 W. Va. 284, 83 S.E.2d 762 (1954); Stewart v. Lyons, 54 W. Va. 665, 47 S.E. 442 (1903); Nicholas v. Keshner, 20 W. Va. 251 (1882); Woodville v. Woodville, 63 W. Va. 286, 60 S.E. 140 (1908) (overruled on other grounds); Payne v. Payne, 97 W. Va. 627, 125 S.E. 818 (1924); Kerr v. Lunsford, 31 W. Va. 659, 8 S.E. 493 (1888); 20 Michie’s Jurisprudence Wills §§ 9-11 (2010).

FAQs

Do you have to pay back legal aid? ›

Applying for legal aid

If you qualify, the legal aid will be paid directly to them. You'll need to pay some legal aid back if you keep or gain any money or property at the end of your court case.

How do you avoid probate in WV? ›

You might be able to avoid probate in West Virginia by: Establishing and funding a Revocable Living Trust. Titling property smartly: in Joint Tenancy. Creating assets/accounts that are structured as Transfer on Death (TOD) or Payable on Death (POD)

How long do you have to settle an estate in WV? ›

There two ways to close the estate: (1) final settlement; or (2) waiver of final settlement. Generally, you must close the estate within 5 years of starting the probate process. W. Va.

How do you qualify for legal aid in Virginia? ›

These include:
  1. Your household income must be below the federal poverty guidelines.
  2. Your household assets must be below the guidelines.
  3. You must live in or have a case in our Service Area.
  4. You must be a U.S. Citizen or meet one of our Non Citizen Exceptions.
  5. Your must have a case within our Case Acceptance Guidelines.

What is the income threshold for legal aid? ›

Who can get legal aid? You qualify for legal aid if: You are on a low income or receive income-related benefits, such as income support, income-related ESA or JSA. If your monthly income, excluding PIP or DLA is above £2657 you will not be eligible for legal aid.

What happens if you can't pay legal aid? ›

If you can't afford your payments

If you don't make your payments or change your mind about legal aid, your solicitor will stop working for you under legal aid. You may have to pay whatever work the solicitor has done for you so far.

How much does an estate have to be worth to go to probate in West Virginia? ›

No, not all estates must go through the formal probate process under West Virginia law. As described above, smaller estates (valued at less than $100,000 not counting real estate) and any property that passes to beneficiaries by living trust document can avoid the complicated process of formal probate.

What are non probate assets in WV? ›

(b) For purposes of this section, "nonprobate personal property" means all personal property which does not pass by operation of the decedent's will or by the laws of intestate descent and distribution or is otherwise not subject to administration in a decedent's estate at common law.

Does WV have an inheritance tax? ›

Like most states, there is no West Virginia inheritance tax. That means if you inherit property, either real property, personal property, or intangible property like financial accounts or cash, you will not have to pay an inheritance tax in WV West Virginia inheritance tax on the value of the inherited property.

What debts are forgiven at death? ›

What debt is forgiven when you die? Most debts have to be paid through your estate in the event of death. However, federal student loan debts and some private student loan debts may be forgiven if the primary borrower dies.

How long does an executor have to distribute assets in WV? ›

It must be within six months of the date of the final order of the county commission admitting the decedent's will to probate or commencing intestate administration of the estate. If neither of those apply then it within six months from the date of decedent's death.

Can I clear a house before probate? ›

Probate would need to be completed before you could remove the items. If you're the personal representative or executor of the estate, you would need to take inventory of the contents of the house as part of recording the estate's assets. The executor may need to sell off the house to pay any outstanding debts.

What benefits qualify for legal aid? ›

On non-criminal law, legal aid is available for areas including: family law (such as financial support after marriage and disputes over children); debt problems (if you are being taken to court over debts, for example); domestic violence; social security benefits; housing (particularly evictions); employment; asylum ...

What does legal assistance cover? ›

Typically, legal expenses insurance provides cover for common issues such as: Unfair dismissal, or discrimination at work; Injury from an accident that was not your fault; or.

How do I get a free lawyer in Virginia? ›

Civil Legal Aid Programs

You may also call 1-866-LEGLAID (1-866-534-5243) to reach your local legal aid office.

What are the two tests for legal aid? ›

In order to be eligible for civil legal aid, the applicant must pass both the income and the capital eligibility test.

Does legal aid pay all costs? ›

Legal aid can help you pay for some or all of your legal costs. You may be able to get legal aid if you're on a low income and your problem is serious. For example, you could get legal aid if: you're at risk of losing your home.

How long does it take for legal aid to be approved? ›

Applications are usually processed within 25 working days. If we agree a case is urgent, we will prioritise it and make a decision within 10 working days.

What happens if a person can't afford a lawyer? ›

Legal Aid is a statutory body that was established to provide free legal assistance and representation to people who can't afford an attorney but need one.

Who is eligible for legal aid in family court? ›

For most disputes between parents or extended family members, for example about where your child lives/when you see your child, and for disputes about finances when you divorce, legal aid is only available where there is evidence that you are a victim of domestic violence or that the child is at risk of abuse from the ...

What is a legal aid charge? ›

Legal costs are often recovered from the opponent in a case – or an opponent may agree to pay a percentage of the costs in settling a case. The Statutory Charge is a way of recouping some of the costs spent on a Legal Aid case by the Legal Aid Agency, so that more people can have access to Legal Aid.

How do you value belongings for probate? ›

Valuing parts of the estate for probate

Assets need to be valued at their open market value. This is the price the asset might reasonably fetch if it was sold on the open market at the time of the death. This represents the realistic selling price of an asset, not an insurance value or replacement value.

Who inherits if no will in WV? ›

If only one parent is living, that parent will inherit the entire estate. If no parents are living, the person's siblings or their descendants will inherit the estate. And finally, if no relatives are found, the estate property will become the property of the state of West Virginia.

Does an executor have to show accounting to beneficiaries in WV? ›

Unless waived by all beneficiaries, the fiduciary of the estate must file annual accountings and a final accounting. See W. Va.

What assets are not included in an estate? ›

Which Assets are Not Considered Probate Assets?
  • Life insurance or 401(k) accounts where a beneficiary was named.
  • Assets under a Living Trust.
  • Funds, securities, or US savings bonds that are registered on transfer on death (TOD) or payable on death (POD) forms.
  • Funds held in a pension plan.

Can you sell a deceased property without probate? ›

It is vital on someone's death that the executors obtain Probate as you have no legal authorisation to sell a property before Probate is granted, unless your name is already on the title deeds.

Can you gift a house in WV? ›

In order for a gift deed to be valid they must meet the following requirements: The grantor must intend to make a present gift of the property, the grantor must deliver the property to the grantee, and the grantee must accept the gift.

Do you pay inheritance tax on money left in a will? ›

Your beneficiaries (the people who inherit your estate) do not normally pay tax on things they inherit. They may have related taxes to pay, for example if they get rental income from a house left to them in a will.

Does WV have transfer on death? ›

When considering your estate planning options in West Virginia, there are several different ways to designate who should receive your property after death. West Virginia has legalized TOD deeds by enacting the WV Real Property Transfer on Death Act.

Do I have to pay taxes when I inherit money? ›

Inheritances are not considered income for federal tax purposes, whether you inherit cash, investments or property. However, any subsequent earnings on the inherited assets are taxable, unless it comes from a tax-free source.

What debt is not forgiven after death? ›

As a rule, a person's debts do not go away when they die. Those debts are owed by and paid from the deceased person's estate. By law, family members do not usually have to pay the debts of a deceased relative from their own money. If there isn't enough money in the estate to cover the debt, it usually goes unpaid.

How long can you keep a deceased person's bank account open? ›

Then the procedure of transferring money to the nominee starts and the account remains in the dormant state for 6 months to 12 months (differs from bank to bank). Here are the Required documents: Application, stating that the account holder has passed away, Notarized death certificate.

Do you have to file taxes for a deceased person? ›

In general, file and prepare the final individual income tax return of a deceased person the same way you would if the person were alive. Report all income up to the date of death and claim all eligible credits and deductions.

Can an Executor distribute cash before probate? ›

It is up to the executor's discretion as to whether they distribute any money before probate. However, an executor should consider how a beneficiary receiving their inheritance early could affect the rest of the estate administration.

Is a spouse responsible for medical bills after death in West Virginia? ›

Under W.Va. Code §48-3-22 (1931), inter alia, both a husband and wife are liable for the reasonable and necessary services of a physician rendered to either spouse while residing together as husband and wife.

How much does probate cost in West Virginia? ›

How much Probate in West Virginia costs. Probate and settling an estate generally costs an average of $15,000 unless you use tools that make it easier, but remember that the money you will be spending will be the estate's money, not your own.

What happens if a house is sold before probate? ›

Technically the answer to 'can you sell a house before probate' is yes, yes you can. Although you will need probate to exchange and complete, nothing is stopping you from listing your house on the market and accepting any offers, if you get them, before being given the Grant of Probate.

How long does a house remain in probate? ›

In some estates, a Grant of Probate is issued within months of the testator's death. More typically, however, it will take a year or more. In Ireland, there is also a concept known as the Executor's Year. This gives the executor 12 months to distribute the estate, starting from the date of the testator's death.

Can you live in a house while waiting for probate? ›

Can You Live in a House During Probate? If you already live in the house at the time when the decedent has died, you may continue to live in it until the probate ends.

How much can you have in the bank to get legal aid? ›

You will also qualify if your disposable income does not exceed £733 per month. Your capital will qualify if your savings amount to less than £8000. If you are applying for legal aid for court proceedings then savings between £3000 and £8000 may be liable to be paid to the LAA as a contribution to your case.

Do I have to provide bank statements for legal aid? ›

In all cases, we require the following: If you're working: Last 3 months wage slips/2 years' worth of accounts if self employed. Last 3 months bank statements for all bank accounts that you hold (whether in your sole name or joint, including savings accounts, ISA's etc.)

Do I have to pay back legal aid? ›

Applying for legal aid

If you qualify, the legal aid will be paid directly to them. You'll need to pay some legal aid back if you keep or gain any money or property at the end of your court case.

Who is not entitled in free legal services? ›

It states that those persons who have annual income of less than the amount prescribed by the respective State Government, if the case is before any court other than the Supreme Court, and less than Rs. 5 Lakhs, if the case is before the Supreme Court, are eligible for free legal aid.

What types of civil cases does legal aid cover? ›

Civil legal aid could help with the costs of using a solicitor to prepare a case and speak for you in court. Examples of civil cases include: divorce, ending a civil partnership and disputes about children. trying to get compensation for injuries after an accident or for medical negligence.

What are legal expenses? ›

Legal Expenses means the fees, costs and expenses of any kind incurred by any Person indemnified herein and its counsel in investigating, preparing for, defending against or providing evidence, producing documents or taking other action with respect to any threatened or asserted Claim.

What is a pro bono lawyer? ›

What does pro bono mean? Pro bono, whose English translation of the well-known Latin phrase is “for the public good,” refers to professional services provided at no or very low cost. For attorneys, this familiar expression can stand for time away from billable duties, and it can be both inspiring and challenging.

How much does a family lawyer cost in Virginia? ›

The average hourly rate for a lawyer in Virginia is between $101 and $399 per hour.

Can you get legal aid for financial matters? ›

Getting legal aid

If your case is serious and you can't afford to pay your legal costs, legal aid might pay some or all of them.

Is legal aid Free Australia? ›

Each Australian state and territory legal aid commission has a Family Advocacy and Support Service. The service combines free legal advice and support at court for people affected by domestic and family violence.

Can you get legal aid if you have savings? ›

Even if you are working, own your home and have savings, you may still qualify for legal aid. However, you may have to pay a contribution towards the cost of taking your case to court.

What is the maximum income to qualify for legal aid UK? ›

Net and Gross income limit

You are automatically not eligible for legal aid if your 'Gross' income' is higher than £2,657. If you have more than 4 child dependants, then add £222 to this figure for the fifth child and each further child.

What is legal aid given for? ›

Legal aid is the provision of assistance to people who are unable to afford legal representation and access to the court system. Legal aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial.

What will legal aid do? ›

Legal aid can help you pay for some or all of your legal costs. You may be able to get legal aid if you're on a low income and your problem is serious. For example, you could get legal aid if: you're at risk of losing your home.

What are legal fees examples? ›

An hourly rate case is when your lawyer will charge you for each hour (or portion of an hour) that they work on your case. For example, if the lawyer's fee is $100 per hour and the lawyer works 5 hours, the fee will be $500. This is the most typical fee arrangement.

Who is entitled to receive the free legal services and for what purpose? ›

It states that those persons who have annual income of less than the amount prescribed by the respective State Government, if the case is before any court other than the Supreme Court, and less than Rs. 5 Lakhs, if the case is before the Supreme Court, are eligible for free legal aid.

What are the free legal services rendered under the legal aid scheme? ›

Free legal aid is the provision of free legal services in civil and criminal matters for those poor and marginalized people who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any Court, Tribunal or Authority.

Does everyone have the right to legal representation? ›

In criminal law, the right to counsel means a defendant has a legal right to have the assistance of counsel (i.e., lawyers) and, if the defendant cannot afford a lawyer, requires that the government appoint one or pay the defendant's legal expenses.

Can I chat with a lawyer online for free? ›

With LawRato's free legal advice service you can talk to a real lawyer about your legal issue for free and get a practical solution instantly. We believe that the right information helps you make better decisions.

What is the merits test for legal aid? ›

The merits test

This is known as the means test. You will need to provide evidence of all of your income (such as wages and benefits) and any capital (such as savings, properties and shares). The Legal Aid Agency will then deduct certain allowances for rent, if you work, have children or other dependents.

Who is eligible for legal aid England? ›

You could for example get legal aid if: you or your family are at risk of abuse or serious harm, for example domestic violence or forced marriage. you're at risk of homelessness or losing your home. you've been accused of a crime, face prison or detention.

Videos

1. Understanding Senior Living Community Contracts
(Positive Aging Community)
2. Living Trusts: 5 Things to Ask Before Hiring a Trust Attorney- Glendale Wills and Trusts Attorney
(Armine Bazikyan)
3. Benevilla Lunchtime Learning Workshop - "Top 10 Priorities in Estate Planning"
(Benevilla)
4. How To Find Out What Accounts Deceased Person Owned
(America's Estate Planning Lawyers)
5. How Probate Works When No Will
(America's Estate Planning Lawyers)
6. 12 Dumb Mistakes Executors Make
(America's Estate Planning Lawyers)

Top Articles

You might also like

Latest Posts

Article information

Author: Fr. Dewey Fisher

Last Updated: 10/25/2022

Views: 6454

Rating: 4.1 / 5 (62 voted)

Reviews: 93% of readers found this page helpful

Author information

Name: Fr. Dewey Fisher

Birthday: 1993-03-26

Address: 917 Hyun Views, Rogahnmouth, KY 91013-8827

Phone: +5938540192553

Job: Administration Developer

Hobby: Embroidery, Horseback riding, Juggling, Urban exploration, Skiing, Cycling, Handball

Introduction: My name is Fr. Dewey Fisher, I am a powerful, open, faithful, combative, spotless, faithful, fair person who loves writing and wants to share my knowledge and understanding with you.