West Virginia Estate Planning Considerations
Common Law State
West Virginia is a Common Law State, which means the rules governing the ownership, division, and inheritance of income and property acquired by a husband or wife during their marriage holds that subject to various qualifications, each spouse owns and has complete control over his or her income and property.
Last Will and Testament
The minimum age of a person competent to make a will is 18. The number of witnesses necessary to execute a will is two.
The custodial arrangement terminates when:
- The minor child reaches age 21 for custodial transfers made by irrevocable lifetime gift, will, trust, or exercise of a power of appointment.
- The minor child reaches the age of majority (generally speaking, age 18) for other custodial transfers.
- The minor child dies.
Dying without a Last Will, the West Virginia Laws of Intestacy
The estate goes to the surviving spouse, as follows:
- If there are no surviving descendants, —100% of the estate
- If all surviving descendants are also descendants of the spouse and there is no other surviving descendant of the spouse, —100% of the estate
- If all surviving descendants are also descendants of the spouse and the spouse has one or more surviving descendants who are not also descendants of the decedent, —60% of the estate
- If one or more of the surviving descendants are not also descendants of the spouse, —50%
If there is no surviving spouse, or if a portion of the estate does not go to the spouse:
- 100% to surviving descendants by representation (see §42‐1‐3d(b))
If there is no surviving spouse or descendant:
- 100% to surviving parent or parents equally
If there is no surviving spouse, descendant, or parent:
- 100% to the descendants of the decedent’s parents (or either parent) by representation (see §42‐1‐3d(b))
If none of the above:
- Intestacy laws outline further distribution steps to the level of grandparents and their descendants. See W. Va. Code §42‐1‐3a(d).
- If no legally described recipient can be found, estate assets go to the state of West Virginia.
West Virginia follows the West Virginia Uniform Fiduciary Access to Digital Assets Act to ensure that testators can retain control of their digital property and plan for its ultimate disposition.
West Virginia does not impose an inheritance tax.
Credit Estate Tax
West Virginia imposes an estate tax equal to the maximum credit allowed under the federal tax code for paid state estate and inheritance taxes under I.R.C. Sec. 2011. However, the current federal tax code does not permit a credit for paid state estate or inheritance taxes. Therefore, there is no credit estate tax in effect at this time.
Generation-Skipping Transfer Tax (G.S.T. Tax)
West Virginia does not impose a G.S.T. Tax.
West Virginia does not impose a gift tax.