will. When that happens, state law generally steps
in and creates a plan to distribute that person’s
assets. In West Virginia, the law that applies is
Chapter 42 of the West Virginia Code, which you
can access on the Internet in its entirety on the
West Virginia Legislature’s website:
http://www.legis.state.wv.us/WVCODE/Code.
cfm?chap=42&art=3#03.
In a nutshell, if a West Virginia resident dies
without a will, that person’s property is distributed
to certain members of his family. The real question
is, which family members? Most people assume
that if a person is married, then the surviving
widow or widower inherits everything, but that is
not always the case. If Adam is married to Eve
and they either (1) have no children or (2) have
children only with each other, then generally Eve
would inherit Adam’s property. However, if Adam
had children with a different woman, then Eve
would only inherit half of Adam’s probate property.
Now, what if Adam and Eve were married and had
children together, but Eve also had a child from
another man? When Adam dies, Eve would only
get three/fifths of Adam’s probate property and his
children would get the other two/fifths. Finding this
complicated? Well, it can be, depending on the
family situation.
What if the person who dies is not married?
In that case, his descendants (children, then
grandchildren and so on) would inherit. No
descendants? Then his parents would inherit
or, if none, then the descendants of his parents
(siblings, then nephews and nieces and so on)
would inherit. Finally, if none of these family
members are alive, it goes to an outer branch of
the family (grandparents and their descendants),
but no further. West Virginia intestate law does
not allow it to go out beyond the grandparents’ line
(unlike some states that allow the intestate descent
to go out to far flung relatives who are sometimes
called “laughing heirs” because they are so far
removed that they do not know the deceased
person enough to mourn him).
The real concern here is whether a person
really wants a certain family member to receive
funds. Under the intestate law, a person without a
will does not get to pick and choose the relatives
he likes. The law treats each relative the same.
Even if the deceased person loved his brother but
hated his sister, they receive equal amounts under
the intestate law. Putting this all together, it is clear
that having a will can help make a person’s final
wishes clear and can help a person make sure that
their loved ones receive the assets that the person
wants them to.
As always, this material is for informational
purposes only and is not meant as legal advice.
Please consult with your legal advisor regarding
your personal situation.
Emily R. Lambright is a senior associate
in the Charleston office of Bowles Rice LLP.
Licensed as a certified public accountant
(CPA), she has experience in wills, trusts,
estates and business succession planning.
For more information, please contact Ms.
Lambright at (304) 347-1100.
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West Virginia Farm Bureau News 19