West Virginia Last Will and Testament

Introduction

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.

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.