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Jenkins Fenstermaker, PLLC

325 Eighth Street

Huntington, WV 25701-2225

Phone (304) 523-2100

Toll Free (866) 617-4736

By Anna Melissa Price Of Jenkins Fenstermaker, PLLC on 11/06/2018
What Is the Time Frame for Challenging a WV Will?

Originally, the statute of limitations for filing a will contest in West Virginia was five years. Over the last century, the West Virginia Legislature has gradually reduced that period, and the time frame for challenging a WV will is now only six months.

The six-month time limit for will contests does not apply in all cases, but figuring out whether an exception to that time limit applies can be difficult. Those creating, defending, or contesting a will in WV should consult with an attorney who is well-versed in West Virginia inheritance law.

Identifying the Time Frame for Challenging a WV Will

The days and weeks following the death of a family member or loved one are extremely difficult. The emotional strain of loss is often compounded by the stress of making final arrangements and settling the affairs of the deceased.

Just as every family is different in its personal relationships and grief, so are the details of each person's estate. A lawyer with experience in West Virginia inheritance law can help you navigate the legal processes involved in estate distribution and understand what happens in a will is contested in WV.

West Virginia Inheritance Law and Probate Procedures

Under West Virginia inheritance law, the probate process is used to establish the validity of the will and, in some cases, supervises the settlement the affairs and distribution of assets of the deceased.

Probate of a will generally occurs in one of two ways: formal probate in solemn form or informal ex parte probate. Under West Virginia Code § 41-5-5, the formal West Virginia probate process is administered by the county clerk and county commission of the county of which the deceased was a resident or property owner.

In the case of ex parte probate, the county clerk issues the initial order admitting a will to probate, but that order must be confirmed by order of the county commission. In either case, the date of the county commission order starts the clock for filing a will contest.

Defining the Time Frame for Challenging a WV Will

Generally, a will contest must be filed within six months from the date of the probate order of the county commission. But West Virginia Code § 41-5-12 outlines some exceptions that extend the time frame for contesting a will in WV:

  • The plaintiff, the person contesting the will, was under the age of 18 at the time of the county commission's probate order
  • The plaintiff was a convict at the time of the order
  • The plaintiff was mentally incapacitated at the time of the order
  • The plaintiff was a non-resident who did not appear as a party and was not summoned by the county clerk or commission

An underage claimant has one year from the date he or she comes of age to file a will contest in West Virginia. Convicted or disabled individuals are allowed one year to file as well, beginning from the date upon which the disability ceased. Non-residents may challenge a WV will up to one year from the date of the county commission's order.

What Happens after a Will Is Contested in WV?

Valid will contests in West Virginia are decided in a jury trial in the circuit court of the county where the challenge is pending. The purpose of the trial is to attempt to determine or clarify the final wishes of the deceased regarding the disbursement of the estate.

At this stage, the jury will review all testamentary documentation and relevant evidence and then return a verdict with its conclusion on the validity of the will. An attorney with deep experience in wills and trusts would be best capable to help you understand what happens after a will is contested in WV.

The Time Frame for Challenging a WV Will, and Additional Considerations

Issues related to West Virginia probate and contesting a will in WV can be complex. In a time when your family needs to grieve and focus on healing, the counsel of an attorney who knows the intricacies of West Virginia inheritance law can offer great comfort.

If you need help identifying your situation's specific time frame for challenging a WV will or would like advice on other matters related to wills, trusts, and estates, Anna M. Price of Jenkins Fenstermaker, PLLC can help. Contact Anna today using her online form or by calling (304) 523-2100 or (866) 617-4736 toll-free.