Updating your will or estate plan may not be at the forefront of your mind. After all, life is busy, and it’s a task easily pushed to the side. Perhaps you haven’t yet taken the first steps to write a will and have been putting it off for years. In 2022, you should make the resolution to write a will or estate plan or update an existing one.
You owe yourself and your loved ones the peace of mind garnered by having these affairs in place. If you die without a will in place, your estate will be distributed by a method called intestate succession.
When intestate succession occurs, the court is responsible for distributing your assets—in accordance with West Virginia law—once you’ve passed away. You should do what you can now to protect your assets by specifying in a will or estate plan how you prefer them to be distributed to loved ones once you’re gone.
It’s a good rule of thumb to review your will or estate plan once a year. You should update it at the time of certain life-changing events.
- When having your first child: Often, people create a will when expecting their first child. It’s important to name a legal guardian for your child, as well as a trustee responsible for any trust created for the child by the will, in case something were to happen to you.
- When thinking about divorce: You should update your will before filing for divorce, if you do not want your soon-to-be ex-spouse maintaining marital rights to part of your estate.
- When you have gotten divorced: If your divorce has been finalized, your ex likely no longer has rights to your estate, and it’s necessary for you to identify new beneficiaries (persons entitled to portions of your estate).
- When your child gets married: If you’re concerned that your adult child may eventually get divorced and you don’t want their spouse receiving your assets, you can update your will by creating trusts including post-nuptial requirements that must be met for your child to receive any part of your estate once you’ve passed away.
- When your beneficiary has financial or substance abuse issues: You can update your will to allow a third party to distribute funds to beneficiaries under your desired circumstances.
- When your beneficiary dies: If your beneficiary dies, you may want to name a different beneficiary, or distribute assets to the deceased’s children.
- Your child becomes a responsible adult: Perhaps your beneficiaries are deceased, and your adult child is now a viable option to handle your estate affairs.
- New legislation is in place: It’s a good idea to ask your attorney if Congress has passed new legislation that might affect your estate plan.
- You acquire a large sum of money: Acquiring more money may incite you to reevaluate how you distribute your assets.
- You’ve misplaced your original will: If you cannot find your original will, you should create a new one that explicitly states that all prior wills are invalidated.
- You buy property abroad: Depending on reciprocity laws for the country you purchase property in, you may need separate wills for your respective properties.
Defining a Will
A will (or last will) is a document that details what you desire to happen to your property after you die. Your wishes can be specific, general, or conditional. The following are examples of different statements you could write regarding distribution of your assets in your will.
- Specific: “My daughter will receive my diamond necklace; my son will receive my souvenir baseball.”
- General: “Each of my surviving heirs are to take an equal share of value from the estate.”
- Conditional: “My son is to receive my home if he resolves to attend AA meetings and stop drinking alcohol.”
To be valid, a will must comply with West Virginia law. It’s advisable to consult an attorney when working on your will. When it comes to wills, clarity is key—having the right verbiage will prevent misunderstandings and arguments over your property after you pass away. An attorney can help ensure that what you intend to say is what the court will also interpret when reading your will.
A will is one of many documents that can be included in an estate plan.
Defining an Estate Plan
An estate plan is a set of legal documents that detail your wishes for the distribution of property, guardianship of minor children, and other important information such as decisions pertaining to funeral arrangements. Documents that can be part of an estate plan include:
- Last will and testament
- Durable power of attorney
- Financial power of attorney
- Medical power of attorney
- Revocable living trust
- Advance healthcare directive
- Special needs trust
Requirements for a Valid Will in West Virginia
West Virginia state law holds certain requirements for a will to be considered valid.
- Capacity: This means you’re at least 18 years old and are “of sound mind,” in other words, aware that you’re writing a will.
- Written will: The will must be written; if you wish to make any changes, they will only be enforceable if written in the will.
- Signed by testator: You must sign your will.
- Two witnesses: You need two witnesses who will not be receiving anything from your will.
- Signature of two witnesses: Those two witnesses must sign their names on your will. These signatures do not need to be notarized.
West Virginia law allows you to make your will “self-proving”—this means after you’re deceased, the court will not have to prove the validity of your will.
By including a notarized self-proving affidavit (written statement used as evidence in court) with your will, you eliminate the court’s need to bring your witnesses to court to testify that your will is valid.
This can speed up the probate process (process of establishing the validity of a will) significantly.
Call Us Today
At Katz, Kantor, Stonestreet, & Buckner, we pride ourselves on being a firm trusted by individuals and families in West Virginia for over 88 years. Our attorneys are committed to making our clients priority and helping them understand their legal options. We are always available and offer weekend and evening appointments.
Call us today at (304) 713-2014 or submit your information here to schedule your free consultation.