General DefinitionA decedent's intestate estate is defined as any part of the estate not effectively disposed of by a valid will.
Order of DistributionThe intestate share of a decedent's surviving spouse is:
- The entire intestate estate if no descendant of the decedent survives the decedent or all of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent;
- 3/5 of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent;
- 1/2 of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse. Sec. 42-1-3.
Any part of the intestate estate not passing to the decedent's surviving spouse or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent:
- To the decedent's descendants by representation;
- If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent;
- If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation;
- If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent's maternal relatives in the same manner; but, if there is no surviving grandparent or descendant of a grandparent on either the paternal or the maternal side, the entire estate passes to the decedent's relatives on the other side in the same manner as the half. Sec. 42-1-3A.
If there is no taker under the provisions of this article, the intestate estate passes to the state. Sec. 42-1-3C.
Common Law or Community PropertyWest Virginia is a common law property state.
CapacityThe testator of a valid will must be at least 18 years of age and of sound mind. Sec. 41-1-2.
DraftingA valid will must be made in writing and signed by the testator, or by some other person in the testator's presence and by his direction. A holographic will completely written in the handwriting of the testator is permitted. Unless the will is holographic, the will must be signed or acknowledge in the presence of at least two competent witnesses, present at the same time. The witnesses must sign the will in the presence of the testator, and of each other, but there is no required form for attestation. Sec. 41-1-3.
Any or all of the attesting witnesses to any will, at the request of the testator, may make and subscribe an affidavit before any officer authorized to administer oaths to establish and prove the will. If the affidavits are later produced and offered in evidence when the will is offered for probate, they will be admissible with the same probative value as if the affiants had appeared in court or before the clerk and testified to the facts stated in the affidavit. Sec. 41-5-15.
BeneficiariesThe term "beneficiary", as it relates to a trust beneficiary, includes a person who has any present or future interest, vested or contingent, and also includes the owner of an interest by assignment or other transfer; as it relates to a charitable trust. It includes any person entitled to enforce the trust; as it relates to a "beneficiary of a beneficiary designation", refers to a beneficiary of an account with POD designation, of a security registered in beneficiary form (TOD) or other nonprobate transfer at death. As it relates to a "beneficiary designated in a governing instrument", it includes a grantee of a deed, a devisee, a trust beneficiary, and a beneficiary of a beneficiary designation or a person in whose favor a power of attorney or a power held in any individual, fiduciary or representative capacity is exercised. Sec. 42-1-1(2).
Where title to property depends upon priority of death and there is no sufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if he had survived. Sec. 42-5-1.
If a devisee or legatee die before the testator, or are dead at the time of making of the will and leave issue who survive the testator, the issue must take the estate devised or bequeathed, as the devisee or legatee would have done if he had survived the testator, unless a different disposition is made or required by the will. Sec. 41-3-3.
ModificationsNo will or codicil, or any part, shall be revoked, unless a subsequent will or codicil is executed or some writing is made declaring the intention to revoke and executed in the manner in which a will is to be executed, or the testator or someone in his presence and by his direction cuts, tears, burns, obliterates, cancels or destroys the will or the signature with the intent to revoke the will. Sec. 41-1-7.
If, after executing a will, the testator is divorced or his marriage is annulled, the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise. The property passes as if the former spouse failed to survive the decedent. If will provisions are revoked solely by divorce or annulment, they are revived by testator's remarriage to the former spouse. A decree of separation will not revoke the will. Sec. 41-1-6.
Naming of Personal RepresentativeThe decedent has the right to name the personal representative of his or her estate through a validly constructed will. The term personal representatives include executor, administrator, successor personal representative, special administrator and persons who perform substantially the same functions. Sec. 42-1-1(29).
When a person dies intestate, the court may appoint an administrator for the estate. Administration will be granted to the distributees who apply with preference given first to the surviving spouse. If no distributee applies for administration within thirty days from the death of the intestate, the court or clerk may grant administration to one or more of the decedent's creditors, or to any other person. Sec. 44-1-4.
Admission to ProbateAt the time of or following the production of a will, any person may move the county court having jurisdiction, or the clerk of the court to probate the will. The court or the clerk may then proceed to hear and determine the motion and admit the will to probate. The probate of, or refusal to probate will be reported to the court at its next regular session, and, if no objection is be made, the court will confirm the probate. Sec. 41-5-10.
Submission of WillA person having custody of a will must, within thirty days after the death of the testator is known to him, deliver the will to the clerk of the county court having jurisdiction of the probate, or to the executor named in the will, who must offer it for probate, or deliver it to the clerk, within a reasonable time. Sec. 41-5-1.
NotificationsThe appropriate court having jurisdiction or the clerk of that court may, without notice to any party, proceed to hear and determine the motion to probate a will and admit the will to probate. If the will is contested, notice to interested parties is required. Sec. 41-5-10.
Within thirty days of the filing of the appraisement of any estate, the clerk of the county commission shall publish, once a week for two successive weeks, in a newspaper of general circulation within the county of the administration of the estate, a notice of the administration of the estate and grant time for objections. Sec. 44-1-14A.
InventoryOne of the key duties of the personal representative is to appraise the estate and determine what is able to be distributed after the payment of debts and taxes. The personal representative must value the following assets:
- All probate and nonprobate real estate including, but not limited to, real estate owned by the decedent, as a joint tenant with right of survivorship with one or more parties, as a life estate, subject to a power of appointment of the decedent, or in which any beneficial interest passes by trust or otherwise to another person by reason of the death of the decedent; and
- All probate personal property, whether tangible or intangible, including, but not limited to, stocks and bonds, bank accounts, mortgages, notes, cash, life insurance payable to the executor or administrator of the decedent's estate and all other items of probate personal property.
- Any real estate or interest in real estate so appraised must be identified with particularity and description.
Upon receipt of the appraisement form required under West Virginia Law, the clerk of the county commission shall record it and mail a certified copy of the appraisement form, together with the unrecorded nonprobate inventory form, to the tax commissioner. Sec. 44-1-14.
Homestead, Exempt Property and the Elective ShareThe surviving spouse and/or minor children are entitled to a homestead allowance of $5,000. Sec. 38-9-1. A personal property (exempt property) exemption of $1,000 is also available. Const. Art. VI, Sec. 48.
The surviving spouse of a decedent who dies domiciled in West Virginia has a right of election against either the will or the intestate share. The elective-share is a percentage of the augmented estate (up to 1/2) determined by the length of time the spouse and the decedent were married. Sec. 42-3-1(a).
West Virginia estate tax is imposed on the net taxable estate. The tax is the amount of the federal credit. Sec. 11-11-2. Therefore, currently there is no estate tax in West Virginia.
Income Tax Charitable Deductions and/or Credits
West Virginia allows a taxpaying resident to deduct itemized charitable gifts in the same manner as the IRS. W. Va. Code §11-21-1.
Gift Annuity Requirements
West Virginia, a "notification" state as of July 1, 2006, regulates the issuance of charitable gift annuities under West Virginia Code Section 33-13B-1-6. Charitable gift annuities are exempt from insurance regulation in West Virginia provided the issuing charity satisfies certain conditions and notifies the Office of the Insurance Commissioner. Failure to comply with state law may result in a fine up to $1,000 for each agreement issued, provided the gift annuity otherwise qualifies.
To qualify, a charity must be described in Sec. 501(c)(3) or Sec. 170(c), have been in continuous operation for at least three years (or be a successor/affiliate of a charitable organization that satisfies this requirement) and possess a minimum of $300,000 in unrestricted assets (cash, cash equivalents, or publicly traded securities exclusive of the assets funding the agreements).
Notification ProcessWritten notification must be provided to the Office of the Insurance Commissioner in writing by September 30, 2006 or on the date on which the charity enters into its first charitable gift annuity agreement. The notice must identify the organization, be signed by an officer or director and certify that the organization is a charitable organization issuing a qualified gift annuity.
Disclosure LanguageThe following state-required disclosure language (in a separate paragraph, print size no smaller than is used in the agreement generally) must be included in all gift annuity agreements:
"A charitable gift annuity is not insurance under the laws of this state, is not subject to regulation by the commissioner and is not protected by the West Virginia Life and Health Insurance Guaranty Association established in [§33-26A] or by any other guaranty association established by this code."
Reserve RequirementsWest Virginia does not require an issuing charity to hold any amount in reserve.
Annual Filing RequirementsOnce notification is given to the state, no further reporting is required.
State Contact InformationCristy Dunlap, CAP, MOS
Data Analyst I
WV Offices of the Insurance Commissioner
Financial Conditions Division
PO Box 50540
Charleston, WV 25305-0540
Phone: (304) 558-2100