Jenkins Fenstermaker, PLLC

Local: 304.521.4571

Toll Free: 866.617.4736

Quality. Dedication. Service.

The Hazards of Not Having a Will in West Virginia

Photo of Anna Price

Did you know that not having a valid last will and testament is risky business? If you have specific wishes about how your estate should be distributed after your death, don't leave those wishes to chance. The only way to assure that your wishes are followed is to execute a valid will. The hazards of not having a will can place the legacy intended for your loved ones in jeopardy.

How to Protect Your Family from the Hazards of Not Having a Will

We all know that familiar tendency to put off important tasks like writing a will because we don't feel ready, are too busy, or are waiting for a better time. Acknowledging our eventual demise is certainly no fun. But when it comes to the task of making a will in the Mountain State, procrastination could result in an unintended and possibly devastating outcome for your family. Unfortunately, many are unaware of the consequences of not having a will.

If you don't make a valid plan for the distribution of your property following your death, the state of West Virginia will decide for you-and it may not be what you would have wanted. Read on to learn about the hazards of not having a will and how to avoid them.

What Does It Mean to Die Intestate in West Virginia?

The legal term for dying without a will is dying "intestate." West Virginia's laws of intestacy set out to determine who will receive your property if you leave no valid will. Most people are unaware how those rules direct their estate's distribution.

Even if the statutory plan is agreeable to you, leaving the distribution of your estate to the probate court to identify your family relationships and what's included in your probate estate can make it complicated for your family to anticipate where your assets will go.

Common Hazards of Not Having a Will

No matter where you live, not having a will is risky. Here are some of the common hazards of not having a will:

1. Your property may not be distributed according to your wishes.

2. The distribution of your property may be delayed.

3. The person who executes your will may not be who you would have chosen.

4. Your loved ones may end up fighting.

Keep reading to learn more about each of these hazards.

Your Property May Not Be Distributed as You Directed.

One of the biggest hazards of not having a will is that estate assets won't be distributed to the people you'd wish to have them. Choosing to whom you leave your legacy is one of life's most enduring acts. Not having a valid will leaves you no say in the matter.

Many people assume they know how their property will be distributed without a will. For example, one common misconception is that the surviving spouse will inherit everything. But there are many circumstances in which this isn't the case. For example, if either spouse has children from another relationship, then the amount of the estate distributed to the surviving spouse can decrease.

A valid will is also necessary if you would like to leave your estate to some family members and not others, dictate what portion of your estate anyone should receive, or leave any part of your estate to non-family members. The laws of intestacy are fixed, and they direct assets to be distributed only to certain family members.

The Distribution of Your Property May Be Delayed.

Without a will, family members may bicker over who will be the estate executor, who should receive certain property, and so on. Courts sometimes become involved in these disputes. But regardless, the natural consequence of the lack of clarity is delay, so your descendants must wait to receive their share.

The Person Who Executes Your Will May Not Be the Reason You would Have Chosen.

A valid will is absolutely necessary if you want a particular person to manage the distribution of your estate. This person, called a personal representative or executor, is responsible for collecting the estate assets and distributing them to the appropriate parties as well as paying from the estate assets any of your debts remaining after your death. It is critical to choose someone who will carry out your wishes and not deplete your assets irresponsibly.

If you do not leave a valid will naming an executor, others may petition the probate court for that position, or the court may appointment someone you or your heirs would not have wanted to fill that role. The ensuing battle can delay the ultimate distribution of your estate to family members. Battles of who will manage the probate of Aretha Franklin's estate are on the horizon, and Prince's family members have requested the removal of the personal representative appointed to his estate. A valid will naming a personal representative may have helped prevent these disputes and delays.

Your Family May Fight.

One of the risks of not having a will is that your surviving family will suffer. Even if you've told them how you want your estate distributed, your loved ones will have no legal authority to act outside the intestacy rules. As a result, people who love each other can end up fighting. And sometimes these disputes spoil relationships of even the closest of families.

Who Receives Your Estate When You Don't Leave a Valid Will?

If you die without a will, your estate will have to be processed through probate, a legal process that can be costly, complicated, and time-consuming to your heirs. As mentioned above, the probate court appoints a personal representative to identify the estate assets to the court. Applying WV's intestate succession laws, the court then directs the assets to be distributed as follows:

· If you leave a current spouse and no descendants, your surviving spouse receives all of your probate assets.

· If you leave a current spouse and descendants by that spouse and the spouse has no other children, your surviving spouse receives all of your probate assets.

· If you leave no surviving spouse or descendants but your parents survive you, your parents receive all of your probate assets.

· If you leave siblings but no surviving spouse, parents, or descendants, your siblings receive all of your probate assets.

The intestate laws also provide rules for the distribution of your property among your spouse and children depending on whether you and/or your surviving spouse have children from other relationships.

In addition to dictating where your probate assets will go, the probate court process is a public one. In the probate of your estate, its contents become a matter of public record.

Although probate is often necessary for the identification and distribution of assets after a person's death, certain assets can pass to your intended heirs without going through probate. For example, real estate owned as joint tenants would pass to the other joint tenant(s) upon the death of the first. Vehicles jointly owned can also pass to the surviving owner. And beneficiaries named on bank accounts, investment accounts, and life insurance policies also pass outside of probate to the named beneficiaries.

Having a Valid Will is Important Regardless of the Size of the Estate

You don't have to be rich like Prince or Aretha for the dangers of not having a will to affect your family. Even if you have modest assets, leaving a valid will can give you peace of mind knowing that your intended heirs are less likely to have to endure a long process before receiving their share of your property. And while you can distribute some of your property through trusts, joint ownership, and beneficiary designations, anything leftover that is not covered by a will requires state probate administration and expense.

How to Avoid the Hazards of Not Having a Will

The good news is that it can be quite simple to avoid the hazards of not having a will. An experienced estate planning attorney can help you prepare a will to ensure your assets are distributed after your death as you wish and with the least inconvenience to your heirs possible. Anna M. Price of Jenkins Fenstermaker, PLLC brings experience, understanding, and compassion to what can be a delicate conversation. For more information on wills, trusts, and other estate planning matters, contact Anna by calling (304) 523-2100 ((866) 617-4736 toll-free) or by completing her online contact form

No Comments

Leave a comment
Comment Information
Jenkins Fenstermaker, PLLC Best | Client Recommended | 2019