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West Virginia Last Will and Testament

West Virginia wills need 2 witnesses, not a notary. Make a free last will and testament with holographic and revocation rules. Attorney review available.

Introduction

A last will and testament is a legal document that states who receives your property when you die and names the executor who will administer your estate; it can also name a guardian for your minor children. In West Virginia, a typed will must be signed by the testator and witnessed by two competent witnesses who are present at the same time and who each subscribe the will in the presence of the testator and of each other, under W. Va. Code Section 41-1-3. No form of attestation is required beyond that. A West Virginia will does not need a notary; a notary comes in only if the witnesses later sign an optional affidavit while the testator is still living, under Section 41-5-15, and even that affidavit is not admissible if the will is contested. West Virginia also recognizes a holographic will: one wholly in the testator's own handwriting, which needs no witnesses at all. You must be at least 18 years old and of sound mind to make a will (Section 41-1-2). This page gives a compact West Virginia will skeleton; attorney review is available as an option before you sign.

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Key Things to Know

  1. 1

    A last will and testament is a legal document that states who receives your property and who administers your estate after you die; it can also name a guardian for minor children.

  2. 2

    You need two witnesses. West Virginia requires two competent witnesses, present at the same time, who each subscribe the will in the presence of the testator and of each other (W. Va. Code Section 41-1-3). Do not name a beneficiary as one of the two witnesses if you can avoid it, because of the interested-witness rule below.

  3. 3

    An interested witness does not void the will, but it can void that witness's gift. Under Section 41-2-1, if a witness is also a beneficiary, the gift to that witness is void, except the witness keeps whatever intestate share does not exceed the value of the voided gift.

  4. 4

    West Virginia's witness affidavit is not a full self-proving affidavit. Section 41-5-15 lets the witnesses sign an affidavit before a notary while the testator is still living, which can stand in for their live testimony at probate, but the statute says it is NOT admissible if the will is contested.

  5. 5

    Handwritten (holographic) wills are valid here. A will wholly in the testator's own handwriting and signed by the testator is valid in West Virginia without any witnesses (Section 41-1-3); the witness requirement applies only to wills that are not wholly handwritten.

  6. 6

    The will itself is not notarized. West Virginia's execution formality is two witnesses, not a notary. A notary only appears if you use the optional living-witness affidavit described above.

  7. 7

    You must be 18 and of sound mind, and you can revoke a will several ways. Section 41-1-2 sets the minimum age at 18 and requires sound mind. Section 41-1-7 lets you revoke by a later will or codicil, a signed revoking writing executed like a will, or physical destruction with intent to revoke; Section 41-1-6 automatically revokes gifts and appointments to a former spouse on divorce or annulment.

Key decisions before you file

Before you file a Last Will and Testament in West Virginia, a few decisions shape the document: which option to choose and what each one means. The Last Will and Testament guide walks through them.

Open the Last Will and Testament guide

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WEST VIRGINIA LAST WILL AND TESTAMENT

  1. DECLARATION AND REVOCATION OF PRIOR WILLS I, [YOUR FULL LEGAL NAME], a resident of [COUNTY] County, West Virginia, being of sound mind and at least eighteen years old, declare this to be my Last Will and Testament and I revoke all prior wills and codicils I have made.

  2. EXECUTOR (PERSONAL REPRESENTATIVE) APPOINTMENT I appoint [EXECUTOR NAME] of [CITY, WEST VIRGINIA] as executor of this will, to serve without bond to the extent permitted by law. If [EXECUTOR NAME] cannot or will not serve, I appoint [SUCCESSOR EXECUTOR NAME] as successor executor. Once qualified by the county commission, my executor administers my estate as personal representative.

  3. DISPOSITION OF PROPERTY [INSERT specific gifts and bequests here: describe each item or sum of money and name the beneficiary who receives it. A beneficiary should not also serve as a witness to this will.]

  4. RESIDUARY CLAUSE I give all the rest and residue of my estate, of whatever kind and wherever located, to [RESIDUARY BENEFICIARY NAME]. If [RESIDUARY BENEFICIARY NAME] does not survive me, I give the residue instead to [ALTERNATE BENEFICIARY NAME].

  5. ATTESTATION CLAUSE On [DATE], I signed this will in the presence of the two witnesses named below, who were both present at the same time. Each witness signed below in my presence and in the presence of the other witness, as West Virginia Code Section 41-1-3 requires. No particular form of attestation is required beyond this.

Dated: [DATE]

[YOUR FULL LEGAL NAME], Testator

WITNESSES We, the undersigned, being at least eighteen years old and competent, certify that the testator signed this will in our presence, declared it to be the testator's will, and that we each signed below as witnesses in the presence of the testator and of each other.

Witness 1 signature: _____________________________ Print name: ___________________ Address: ___________________

Witness 2 signature: _____________________________ Print name: ___________________ Address: ___________________

  1. WITNESS AFFIDAVIT WHILE THE TESTATOR IS LIVING Under West Virginia Code Section 41-5-15, the two witnesses above may, at the testator's request, sign an affidavit before an officer authorized to administer oaths, stating the facts they would testify to in court. Kept with the will and produced at probate, this affidavit can substitute for the witnesses' live testimony. It is NOT admissible, however, if anyone contests the will, so it is not a full self-proving affidavit and it does not replace the signatures above.

Sworn to before me on [DATE].

Notary Public, County of [COUNTY], West Virginia My commission expires: [DATE]

Note: This will is governed by West Virginia Code Chapter 41. Do not name a beneficiary as a witness; under Section 41-2-1 the gift to an interested witness is void, except that the witness keeps whatever intestate share does not exceed the value of the voided gift. A will wholly in the testator's own handwriting and signed by the testator is valid in West Virginia without any witnesses at all (Section 41-1-3). This is a compact West Virginia skeleton, not the complete document. For the full, customizable template, see the full Last Will and Testament template.

Once your Last Will and Testament is ready, you can check whether it needs to be notarized in West Virginia in about a minute, and notarize it online through DocDraft if it does.

West Virginia Requirements for Last Will and Testament

Sign With Two Witnesses Present at the Same Time

A typed West Virginia will must be signed (or acknowledged) by the testator in the presence of two competent witnesses who are present at the same time. Each witness must then subscribe the will in the presence of the testator and of each other, and no particular form of attestation is required (W. Va. Code Section 41-1-3).

Avoid Using a Beneficiary as a Witness

An interested witness does not invalidate the will, but it can cost that witness their gift. Under W. Va. Code Section 41-2-1, a devise or bequest to a witness who signed the will is void, except the witness keeps whatever intestate share does not exceed the value of the voided gift.

Understand the Living-Witness Affidavit Is Not a Full Self-Proving Clause

W. Va. Code Section 41-5-15 lets the witnesses sign an affidavit before a notary or other officer authorized to administer oaths while the testator is still living, which can substitute for live witness testimony at probate. That affidavit is NOT admissible, however, if the will is contested, so it does not function like a Uniform-Probate-Code-style self-proving affidavit and does not replace the witness signatures on the will.

Holographic (Handwritten) Wills Are Valid

A will wholly in the testator's own handwriting and signed by the testator is valid in West Virginia without any witnesses. The two-witness requirement in W. Va. Code Section 41-1-3 applies only to wills that are not wholly handwritten by the testator.

No Notary Is Required for the Will Itself

West Virginia's execution formality is two competent witnesses (W. Va. Code Section 41-1-3), not a notary. A notary is used only if you choose to complete the separate living-witness affidavit under Section 41-5-15, which has its own limitation that it is not admissible in a contest.

Be 18 and of Sound Mind

A testator must be at least 18 years old and of sound mind. W. Va. Code Section 41-1-2 states that no person of unsound mind, or under the age of eighteen, is capable of making a will.

Revoke a Will the Right Way

W. Va. Code Section 41-1-7 lets you revoke a will only by a later will or codicil, a signed writing declaring intent to revoke and executed the same way a will must be executed, or by cutting, tearing, burning, obliterating, canceling, or destroying the will or your signature with intent to revoke. Separately, Section 41-1-6 automatically revokes gifts and appointments to a former spouse on divorce or annulment, unless the will says otherwise.

Name an Executor (Personal Representative)

West Virginia's will statute does not require naming an executor, but doing so lets your chosen person, once qualified by the county commission, administer your estate as personal representative instead of the court appointing an administrator for you. Name a successor executor in case your first choice cannot serve.

Does your Last Will and Testament need to be notarized in West Virginia?

Whether a Last Will and Testament needs to be notarized depends on your state. Upload yours, pick your state, and get the current rule with the official source behind it, free and with no account. If yours does need a notary, online notarization is part of your DocDraft plan.

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Frequently Asked Questions

A typed West Virginia will needs two competent witnesses, present at the same time, who each subscribe the will in the presence of the testator and of each other (W. Va. Code Section 41-1-3). Try not to use a beneficiary as a witness: under Section 41-2-1 the gift to an interested witness is voided, except that the witness keeps any intestate share up to the value of the voided gift. A holographic will wholly in the testator's handwriting needs no witnesses at all.

No, not the will itself. West Virginia requires two witnesses to sign the will, not a notary. A notary is used only if the witnesses choose to sign an optional affidavit while the testator is still living, under Section 41-5-15, and even then that affidavit cannot be used if the will is contested.

Yes. Under W. Va. Code Section 41-1-3, a will that is wholly in the testator's own handwriting and signed by the testator is valid without any witnesses. The two-witness rule applies only to wills that are not entirely handwritten by the testator.

Be at least 18 and of sound mind (Section 41-1-2), write out who receives your property and who serves as executor, sign the will, and have two competent witnesses watch you sign (or acknowledge your signature) and then subscribe the will themselves in your presence and in each other's presence (Section 41-1-3). A wholly handwritten and signed will is an exception that needs no witnesses.

A valid West Virginia will is in writing, signed by a testator who is at least 18 and of sound mind, and either wholly in the testator's handwriting or signed and acknowledged in front of two competent witnesses who subscribe in the presence of the testator and of each other, with no particular form of attestation required (Sections 41-1-2 and 41-1-3).

West Virginia does not have the classic self-proving affidavit that survives a will contest. It has a narrower witness affidavit under Section 41-5-15: while the testator is still living, the witnesses can sign an affidavit before a notary stating what they would testify to at probate, and that affidavit can substitute for live testimony. By statute, though, it is not admissible if anyone contests the will.

You must be at least 18 years old and of sound mind to make a valid will in West Virginia. Section 41-1-2 states that no person of unsound mind or under the age of 18 can make a will.

Under Section 41-1-7, you can revoke a West Virginia will with a later will or codicil, a signed writing that declares your intent to revoke and is executed the same way a will is required to be executed, or by physically cutting, tearing, burning, obliterating, canceling, or destroying the will or your signature with intent to revoke. Separately, Section 41-1-6 automatically revokes any gift or appointment to a former spouse if you later divorce or have the marriage annulled, unless the will says otherwise.