Wills: Basic Questions and Answers
Last updated on 05/27/2021 at 4:54 pm
The information in this article is very general. Wills are important legal documents. For specific questions about your situation, you should talk to a lawyer.
What is a will?
A will is a document that records what you want to happen to your property after you die. You can make specific gifts of specific property to specific people (e.g., “I leave my blue and gold, WVU earrings to my daughter, Barb.”). You can make general gifts of general types of property to general classes of people (e.g., “Each of my surviving heirs are to take an equal share of value from the estate.” “I leave my shoes to my granddaughters.”). You can make a gift to someone conditional upon something happening (e.g., “My son, Rocky, is to receive my home if he quits smoking within a year of my passing.”).
A will must comply with state law (W. Va. Code § 41-1-1 et seq.) in order to be valid.
Do I have to have a lawyer in order to get a will?
It is a very good idea to have a lawyer prepare your will, however, you do not have to have a lawyer create a will. A lawyer can make sure that your will says what you want it to say. You wouldn’t want to die thinking that your will said one thing and then have a court read it to say something else! Clarity in your will can also save a lot of trouble later, after you pass away, by preventing arguments over your property.
Can I write my own will?
Yes. A will that you write yourself is called a holographic will. Holographic wills are not valid in every state, but they are valid in West Virginia, as long as they are written entirely in the author’s handwriting. See Syl. Pt. 1, In re Estate of Teubert, 171 W. Va. 226 (1982); Syl. Pt. 2, Charleston Nat’l Bank v. Thru the Bible Radio Network, 203 W. Va. 345 (1998).
BUT, it is not a good idea to write your own will because the court may read your will to say something other than what you meant for it to say. Everyday language is not the same as legal language. A word may mean one thing in everyday speech and something completely different in legal speech.
It is much better to have an attorney write your will. An attorney can make sure that your will says what you want it to say. Clarity in your will can save a lot of trouble later, after you pass away, by preventing disputes over your property.
What do I have to do to have a valid will?
In order to be valid, a will must comply with the requirements of state law. West Virginia state law requires:
- Capacity – must be 18 years-old and know what you that you are writing a will;
- Written will – must be written: statements to others about you last wishes are unenforceable;
- Signed by testator – you must sign your will;
- Two Witnesses – you must have two witnesses, who won’t get anything in the will; and
- Signature of Two Witnesses – your two witnesses must sign the will.
What does it mean to have “capacity”?
In order to have capacity, you must be 18 years or older and be “of sound mind” when you sign the will. W. Va. Code § 41-1-2. In order to be “of sound mind,” you must know that you are preparing a will, know what property you own, and know what you want to do with your property.
For example, if you came to a Legal Aid office to sign a will that a Legal Aid attorney prepared for you, you must know that (1) you are at the Legal Aid office to sign your will; (2) you have a car, house, and bank account; and (3) you want to give your car, house, and bank account to the persons listed in the will. See Syl. Pt. 2, Nicholas v. Kershner, 20 W. Va. 251 (1882).
Who should I get to be my witnesses?
If at all possible, you should use as witnesses people who will not receive anything from your will. Anyone can be your witness. However, it gets tricky if you use a person as your witness who will receive something from your will. The law considers a witness who receives something from your will as disqualified, since they could profit from lying about the signing of the will. W. Va. Code § 41-2-1. If one of your witnesses is someone who gets something under the will, then that person’s gift will be cancelled out. W. Va. Code § 41-2-1.
Don’t forget, you need two witnesses!
What happens if I die without a will?
If you die without a will, you are what the law calls “intestate.” West Virginia law sets out default rules for how your property will be divided. W. Va. Code § 42-1-1 et seq. Depending on whether you have children and whether your spouse has any children that are not yours, your spouse takes between 50% and 100% of your property. W. Va. Code § 42-1-3. Any remainder of your property, or all of your property (if you are not married), passes in the following order:
- To your children.
- If no children living, then to your grandchildren.
- If no grandchildren living, then to your great grandchildren.
- If no great-grandchildren, then to your parents.
- If no living parents, then to your siblings.
- If no living siblings, then to your nephews and/or nieces.
- If no nephews and/or nieces living, then to aunts and uncles. At this point, your property is divided between your maternal and paternal aunts and uncles: ½ to maternal aunts and uncles, ½ to paternal aunts and uncles.
- If no living aunts or uncles, then to your cousins.
- If no living cousins, then to your cousins’ children.
- If no living family members, then your property passes to the State.
These default rules also apply if you have a will, but it is not valid, or if you have property that is not covered by your will. W. Va. Code § 42-1-2.
Who should I appoint as executor of my will?
You can choose to appoint someone as the “executor” of your will. This is done in a provision of the will. The “executor” is the person who is in charge of managing your property while it goes through the probate process. The executor files tax forms listing the value of your property, settles any debts you owe, pays your taxes, and distributes your property according to your will.
First, you want to appoint someone who you trust. They should also be a responsible person, since they will have a number of duties, subject to state law. There will be deadlines that they must meet. They should also be someone who can handle money well.
Normally, an executor is required to post bond. However, you can choose to waive the bond requirement by writing this in your will. W. Va. Code § 44-1-8.
What if someone wrote that they wanted me to have a certain piece of their property and that property no longer belongs to them?
If someone gave you a gift of a certain piece of their property in their will and that property is no longer in their possession when they pass away, then you just don’t get that piece of property. A person can sell, trade, give away, or otherwise get rid of any property listed in their will, at any time. See W. Va. Code § 41-1-9; Collup v. Smith, 89 Va. 258 (1892); Henry v. Haymond, 77 W. Va. 173 (1915). When someone gives away property listed to be gifted by the will, that act of giving away that property cancels that gift.
For example, if Grandma Sue wrote in her will that you are to receive her Corvette and then sold the Corvette before her passing, you’re just out of luck. No Corvette!
How can I get rid of my will?
You can cancel your will by writing a new will or a codicil. W. Va. Code § 41-1-7. A “codicil” is a document that changes a will. It can modify, delete, qualify, add to, or cancel all or part of a will. A codicil can also bring back parts of an old will or all of an old will. W. Va. Code § 41-1-8. You can also cancel your will by writing and signing a document that says that you want to revoke your will. Finally, you can cancel your will by cutting, tearing, shredding, marking up, burning, or otherwise destroying it. See W. Va. Code § 41-1-7; In re Estate of Siler, 155 W. Va. 743 (1972).
What happens if I made a gift in my will to my spouse and we got divorced?
Once the divorce is finalized, that gift and any other gifts in your will to your (ex-) spouse are automatically cancelled, per W. Va. Code § 41-1-6. The divorce is finalized when the family court judge issues a final order ending the marriage.
Until the divorce is finalized or the gift is cancelled some other way, any gift to your (ex-) spouse in your will is valid. Separation can’t cancel that gift, only divorce. You can change your will to exclude your (ex-) spouse, but your (ex-) spouse is still guaranteed a certain portion of your property under state law. W. Va. Code § 42-1-3; W. Va. Code § 42-3-1 et seq.
AN IMPORTANT NOTE: If you have any insurance policies that name your (now, ex-) spouse as a beneficiary, you will need to take your (ex-) spouse’s name off of the policy. Unless you take your (ex-) spouse’s name off of the policy, your (ex-) spouse may be able to receive a payout from your insurance policy, even if you are divorced. See Cook v. Equitable Life Assurance Society, 428 N.E.2d 110 (1981). You should make these changes as soon as you begin the divorce process.
Can I exclude my ex-spouse from my will?
Yes. You can exclude your ex-spouse from your will. If the will was written while you were married, then any gift to your ex-spouse is automatically cancelled, according to state law. W. Va. Code § 41-1-6.
However, you may want to go ahead and change the will anyways. Divorce changes a person’s financial and legal situation and it is important to change your will to reflect this new situation.
It is generally wise to update your will at regular intervals, even if you aren’t going through a divorce. It is always good to have an updated will. Clarity in your will can save a lot of trouble later, by preventing disputes over your property after you’ve passed away.
Can I exclude my child from my will?
Yes. You can exclude a child from your will. You will want to make sure that you make it very clear in the will that you want to exclude your child from your will, since the law discourages parents from excluding their children from their wills.
You should explain why you are excluding your child from your will. You may want to consider having several witnesses present when you announce this intent. You may even want to videotape yourself explaining why you want to exclude your child from your will. Your decision to exclude your child from your will may be challenged. You will need strong evidence that you intended to exclude your child from your will to protect this part of your will from being dismissed by a judge.
What if somebody wanted to give me a gift in their will and I don’t want it? Can I refuse to take it?
You can turn down a gift that someone made to you in a will. People often do this because of the effects that getting a gift might have on their taxes or their government benefits.
For example, someone receiving Social Security benefits may not want to receive a large gift of money because it may disqualify them for their benefits. Similarly, someone might not want to receive Grandma’s fine china set, a family keepsake, because they are filing for Chapter 7 bankruptcy and do not want their creditors to get a hold of the fine china set.