A Guide to West Virginia Inheritance Laws

Although West Virginia has neither an estate tax or nor an inheritance tax, the federal estate tax may still apply, depending on the value of the estate. And like every U.S. state, West Virginia has its own unique set of laws governing inheritance. We’ll break down these inheritance laws, including what happens if you die without a valid will and what happens to your property in different situations. If you want professional assistance with your estate or inheritance plans, the SmartAsset matching tool will match you with capable financial advisors who can help you throughout the estate planning process.

West Virginia collects neither an estate tax nor an inheritance tax. However, state residents must remember to take into account the federal estate tax if their estate or the estate they are inheriting is worth more than $11.18 million. In addition, if you are inheriting property from another state, that state may have an estate tax that applies. You will also likely have to file some taxes on behalf of the deceased.

When you die, there are many federal and estate tax situations that need to become a priority for those who survive you. Besides the state estate tax, you need to look out for the following:

• Final individual federal and state income tax returns – the federal and state tax returns are due by Tax Day of the year following the individual’s death.
• Federal estate/trust income tax return – due by April 15 of the year following the individual’s death
• Federal estate tax return – due nine months after the individual’s death, though an automatic six-month extension is available if asked for prior to the conclusion of the nine-month period
  • This is required only of individual estates that exceed a gross asset and prior taxable gift value of $11.4 million

The Internal Revenue Service requires each estate to have its own employer identification number (EIN) to represent itself in any tax-related matters. To apply for an EIN, visit the IRS website or apply by fax or mail.

In order for your will to be legitimate in West Virginia, which does not use the Uniform Probate Code, you must sign your will in front of two witnesses, and your witnesses must sign your will in front of you and each other. You do not have to notarize your will in order to make it legal. However, you can make your will “self-proving,” which helps to speed up the probate process. In order to so that you will need to go to a notary. A “self-proving” will speeds up the probate process because the court can accept the will without contacting the signing witnesses. You can make your will self-proving if you and your witnesses go to a notary and sign an affidavit that states who you are and that each of you knew you were signing the will.

If you and your spouse divorce, or if a court determines that your marriage is not legal, under West Virginia law, anything in your will that leaves property to your spouse or names your spouse to be your executor is revoked. However, you can get around this rule if you specifically state in your will that divorce should not affect the provisions in your will. This rule does not apply if you happen to remarry your spouse. If you have questions about how divorce may affect your will under West Virginia law, you may want to talk to an estate planning lawyer.

Once the will is determined to be valid, the next step is the probate process. Probate proceedings are usually only required if the deceased person owned any assets in their name only. Other assets, also known as “non-probate” property, can generally be transferred to the other owner without probate.

West Virginia offers a simplified probate process for smaller estates. An estate qualifies as a smaller estate as long as the value of the estate, except for real estate, is $100,000 or less. You can also use the simplified probate process if the personal representative or surviving spouse is the only beneficiary of the estate. The final case in which you can use the simplified probate process is if all the beneficiaries state that no disputes are likely, there are enough assets to pay debts and taxes, and the executor agrees.

To use the simplified probate process, an executor must file a written request with the local probate court requesting to use the simplified procedure. Then the court can decide to allow the executor to distribute the assets without having to go through the regular probate process. If the executor gets permission, they must then file an affidavit, no sooner than 60 days after providing any notice required by law to close the estate. The affidavit must state that the time for filing claims has passed, there are no known, unpaid claims, and how the property was distributed among the heirs. The executor must also attach a waiver that each beneficiary has signed to the affidavit.

Dying without a valid will isn’t ideal if you care about deciding where your assets will end up after your death. West Virginia inheritance laws label these types of estates “intestate,” which means there is no will or, perhaps because of improper or incomplete preparation, no valid will. The court then follows intestate succession laws to determine who inherits your property and how much of it they get.

If you don’t have a will, that means you weren’t able to name an executor. In that case, the probate court will appoint someone to take on the role of tying up any loose ends left with your estate.

Often there are extenuating factors, but if you can help it, it’s best not to die intestate and put your loved ones through that kind of stress. If you’re not sure what kind of estate plan you want to make you can get the help of a financial advisor.

In West Virginia, if you are married and die without a valid will, what your spouse inherits depends on whether or not you have living descendants. Descendants include children, grandchildren, and great-grandchildren. If you have no living descendants, your spouse will inherit all of your intestate property. Your spouse will also inherit all of your intestate property if the only descendants either of you have are from your relationship with your spouse.

If you have living descendants from your relationship with your surviving spouse, and your spouse has descendants from other relationships, your spouse will inherit 3/5 of your intestate property, and your descendants will inherit 2/5 of your intestate property.

If you have descendants from another relationship than the one with your surviving spouse, your descendants will inherit half of your intestate property and your spouse will inherit the other half.

In order for your children to inherit under West Virginia’s intestacy laws, they must legally be your children. Legally adopted children have just as much right to their intestate share as biological children do. In addition, if the decedent placed their child up for adoption and that child was adopted by another family – other than your spouse – they are not legally eligible to receive intestate inheritance from the decedent. However, foster children and stepchildren that were never legally adopted by the decedent are not eligible to receive a share as the decedent’s child.

Children born outside of marriage still receive their share if you married the mother after your child’s birth, you participated in a marriage ceremony that turned out to be void, you acknowledged your paternity, or it was otherwise established under West Virginia law. The decedent’s children can still receive their share if they are born after the decedent’s death. Grandchildren will receive a share only if their parent is not alive to inherit.

Although paternity can be established after the decedent’s death, the law places a limit on the period of time after death that someone can claim to be the decedent’s child and request a share of his estate. 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. In addition, any child who was underage, a convict, or a mentally incapacitated person, can file a civil action within six months after he or she becomes of age or the disability ceases.

If you die without a will, spouses, or descendants in West Virginia, your inheritance then goes to the closest living relatives, as explained by the chart below.

Although the intestate process is designed to protect your property and make sure it stays in the hands of your family, it is generally best to write your own will to ensure that all of your property ends up in the hands you want it in.

The probate process can be difficult and expensive, so you may want to look into the non-probate options available in West Virginia. These assets are also not affected by intestate succession laws, and instead go directly to the named beneficiary. Below are some of the assets that will not have to go through probate and instead go directly to the beneficiaries.

• Any property in a living trust
• Life insurance policies
• 401(k)s, IRAs, other retirement accounts
• Securities in transfer-on-death accounts
• Pay-on-death bank accounts
• Joint tenancy real property

West Virginia has survivorship rules, which means that to inherit under West Virginia’s intestate succession law, the heir in question must survive the decedent by at least 120 hours. In addition, relatives conceived before you die but born after the decedent’s death are eligible to inherit as if they had been born while the decedent was alive. However, posthumous relatives must live at least 120 hours after birth in order to be eligible for their inheritance.

Immigration status is irrelevant when it comes to inheritance. If a relative of yours is entitled to a share of your assets, they can inherit no matter what their citizenship status is. Half-relatives inherit as much as “whole” relatives. For example, your half-sibling would get the same share as any other sibling.

If you give an heir property during your lifetime, the value of that gift can be subtracted from your relative’s share, but only if it is in writing at the time the gift was made, or if the heir admits it in writing.

Estate planning can be a complicated process. And if you’re on the receiving end of an inheritance, you’ll need to figure out what to do with your money, including investment options and tax implications. In either case it’s a good idea to get help from from a financial advisor.

Fortunately, finding the right financial advisor who fits your needs doesn’t have to be hard. SmartAsset’s free tool matches you with financial advisors in your area in five minutes. If you’re ready to be matched with local advisors who will help you achieve your financial goals, get started now.

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