West Virginia Will and Trust Laws: Witnesses, Holographic Wills (2026)

Under West Virginia law, a will must be in writing and signed by the testator (or by another person in the testator's presence and at the testator's direction), and unless it is wholly in the testator's handwriting, the signature must be made or acknowledged before at least two competent witnesses present at the same time, who sign in the presence of the testator and of each other (W. Va. Code 41-1-3). A person under 18 or of unsound mind cannot make a will (41-1-2), and no notary is required. Living trusts are governed by the West Virginia Uniform Trust Code, chapter 44D of the Code.

West Virginia is one of the states among the wills and trusts laws by state that accept a handwritten will with no witnesses, and its witnessing rule has no remote or electronic option. Its trust code makes a trust revocable by default, but only for trusts created under instruments executed on or after July 1, 2011.

Information last verified on 2026-10-20. This article has not been reviewed by a licensed lawyer.

Jurisdiction scope: This article covers West Virginia statutes on making, signing, proving, changing and revoking wills (W. Va. Code chapter 41), the spouse's elective share and omitted-spouse rule (chapter 42, article 3), and revocable living trusts (chapter 44D, the West Virginia Uniform Trust Code). It does not cover what happens when someone dies without a will or how estate administration works (see West Virginia probate), small-estate procedures (see the West Virginia small estate affidavit page), powers of attorney (see West Virginia power of attorney laws), or taxes. A living will is a health-care directive, not a will; see the West Virginia advance directive tool.

What makes a will valid in West Virginia?

Capacity is stated in the negative: "No person of unsound mind, or under the age of eighteen years, shall be capable of making a will" (W. Va. Code 41-1-2). The section contains no exception for a married or emancipated minor.

The form rule is in section 41-1-3:

"No will shall be valid unless it be in writing and signed by the testator, or by some other person in his presence and by his direction, in such manner as to make it manifest that the name is intended as a signature; and moreover, unless it be wholly in the handwriting of the testator, the signature shall be made or the will acknowledged by him in the presence of at least two competent witnesses, present at the same time; and such witnesses shall subscribe the will in the presence of the testator, and of each other, but no form of attestation shall be necessary." (W. Va. Code 41-1-3)

For a will that is not wholly handwritten, that means:

• A writing, signed. The testator signs, or another person signs in the testator's presence and by the testator's direction, in a way that makes it "manifest that the name is intended as a signature."
• Two witnesses at the same time. The testator signs, or acknowledges the will, in the presence of at least two competent witnesses "present at the same time."
• Witnesses sign in each other's presence. The witnesses subscribe the will in the presence of the testator and of each other.
• No set attestation wording. "No form of attestation shall be necessary."

Section 41-1-3 does not require a notary.

Witnesses who take a gift under the will

A beneficiary can serve as a witness, but at a cost. Under W. Va. Code 41-2-1, "If a will be attested by a person to whom, or to whose wife or husband, any beneficial interest in any estate is thereby devised or bequeathed, if the will may not be otherwise proved such person shall be deemed a competent witness; but such devise or bequest shall be void." The same section saves to the witness so much of his or her intestate share, if the will were not established, "as shall not exceed the value of what is so devised or bequeathed." A creditor whose debt the will charges on the estate, or the creditor's spouse, may still be a witness (41-2-2).

Wills of nonresidents

Section 41-1-5 provides that "the will of a person domiciled out of this state at the time of his death shall be valid as to his personal property in this state, if it be executed according to the law of the state or country in which he was so domiciled." The rule is limited to personal property and to the law of the testator's domicile at death. Separately, under 41-5-13(a), where a will "relative to any personalty or real estate located or situate within this state has been proved or probated outside of this state" by another state, an authenticated copy and the certificate of probate may be offered for probate in West Virginia.

Does a West Virginia will need to be notarized?

No. Section 41-1-3 does not mention a notary. Notaries and other officers come in through an optional affidavit procedure in W. Va. Code 41-5-15, which lets witnesses give their testimony in advance:

"Any or all of the attesting witnesses to any will, at the request of the testator, may make and subscribe an affidavit before any officer authorized to administer oaths, in or out of the state, stating such facts as would be required of them in testimony in court to establish and prove the will" (W. Va. Code 41-5-15)

If the testator preserves the affidavits with the will and they are produced when the will is offered for probate, they are admissible "and have the same probative value as if the affiants had appeared in court or before the clerk thereof and testified to the facts stated in the affidavit." The limit is in the proviso: the affidavits "shall not be admissible in evidence in any case in which there is a contest over the will."

Are handwritten (holographic) wills valid in West Virginia?

Yes. The witness requirement in section 41-1-3 applies "unless it be wholly in the handwriting of the testator." A will written entirely in the testator's own hand and signed in a way that shows the name is intended as a signature does not need witnesses.

The exception covers only a will that is wholly handwritten. A will that is typed, printed or partly typed must be signed or acknowledged before two witnesses present at the same time, as described above. Section 41-1-3 does not require a handwritten will to be dated.

Are oral (nuncupative) wills valid?

Section 41-1-3 requires every will to be in writing, so an oral will is not valid under that section. Section 41-1-5 preserves one older exception: "a soldier being in actual military service, or a mariner or seaman being at sea, may dispose of his personal estate as he might heretofore have done." That section does not itself describe the form such a will takes, and it reaches personal estate only.

Electronic wills and remote witnessing

West Virginia's will chapter contains no electronic-will or remote-witnessing provision. Section 41-1-3 requires a will "in writing," signed or acknowledged before witnesses "present at the same time," who "subscribe the will in the presence of the testator, and of each other."

West Virginia does allow remote notarization. Under W. Va. Code 39-4-37, a notary public located in West Virginia may perform a notarial act using communication technology for a remotely located individual if, among other conditions, the notary has personal knowledge of the individual's identity, a credible witness's identification or at least two different types of identity proofing, can confirm that the record is the same one the individual signed, and creates "an audio-visual recording of the performance of the notarial act." That section governs notarial acts. It does not change the witness requirements in section 41-1-3, which is what makes a will valid.

No harmless-error rule

Chapter 41 contains no harmless-error or dispensing-power section of the kind some states use to save a will that does not meet the signing rules. A will that is not wholly handwritten has to meet the two-witness requirement in section 41-1-3.

Changing or revoking a West Virginia will

Methods of revocation

Section 41-1-7 limits how a will can be revoked:

"No will or codicil, or any part thereof, shall be revoked, unless under the preceding section, or by a subsequent will or codicil, or by some writing declaring an intention to revoke the same, and executed in the manner in which a will is required to be executed, or by the testator, or some person in his presence and by his direction, cutting, tearing, burning, obliterating, canceling or destroying the same, or the signature thereto, with the intent to revoke." (W. Va. Code 41-1-7)

The "preceding section" is the divorce rule in 41-1-6.

Reviving a revoked will

A revoked will does not come back on its own. Under 41-1-8, a revoked will or codicil may not be revived "otherwise than by the re-execution thereof, or by a codicil executed in the manner hereinbefore required, and then only to the extent to which an intention to re-revive the same is shown."

Divorce and annulment

Under W. Va. Code 41-1-6(a), if after executing a will the testator is divorced or the marriage is annulled, "the divorce or annulment revokes any disposition or appointment of property made by the will to the former spouse, any provision conferring a general or special power of appointment on the former spouse, and any nomination of the former spouse as executor, trustee, conservator, or guardian, unless the will expressly provides otherwise."

The section works out the details:

• Property that cannot pass to the former spouse "passes as if the former spouse failed to survive the decedent," and the anti-lapse rule in 41-3-3 does not apply to it.
• Provisions revoked solely by the section "are revived by testator's remarriage to the former spouse."
• "A decree of separation which does not terminate the status of husband and wife is not a divorce for purposes of this section."
• The section "applies to all divorces, annulments or remarriages which become effective after June 5, 1992" (41-1-6(b)).

Section 41-1-6 is written for the will, and the transfer-on-death deed statute refers to it: the rules that apply at the owner's death to property subject to a transfer-on-death deed apply "Except as otherwise provided in the transfer on death deed in this article, §41-1-6 of this code" and the other sections that subsection lists (W. Va. Code 36-12-13(a)). Section 41-1-6 itself speaks of dispositions "made by the will," and neither section states in terms that a divorce revokes a transfer-on-death deed naming the former spouse. Neither section addresses beneficiary designations on life insurance or retirement accounts, and the trust code (chapter 44D) has no divorce-revocation section for revocable trusts.

Marriage and other life changes

The same section closes the list: "No change of circumstances other than as described in this section revokes a will" (41-1-6(a)). Marriage after the will and the birth of a child do not revoke it, but each can give the new spouse or child a share, as described in the next section.

Limits on what a West Virginia will can do

Spouse's elective share. Under W. Va. Code 42-3-1(a), the surviving spouse of a decedent who dies domiciled in West Virginia "has a right of election, against either the will or the intestate share," to take a percentage of the augmented estate set by the length of the marriage. The schedule runs from the supplemental amount only for a marriage of less than one year, to 3% of the augmented estate for one year but less than two, rising in steps to 50% of the augmented estate for 15 years or more. The petition must be filed "within nine months after the date of the decedent's death, or within six months after the probate of the decedent's will, whichever limitation later expires" (42-3-4(a)), except as that section provides. The right may be waived, before or after marriage, "by a written contract, agreement, or waiver signed by the surviving spouse" (42-3-3a(a)).

Spouse married after the will. Under 42-3-7, a spouse who married the testator after the will was executed is entitled to no less than the intestate share of the part of the estate not left to the testator's children from before that marriage (who are not the new spouse's children) or their descendants, unless the will was made in contemplation of the marriage, the will says it is to be effective notwithstanding any later marriage, or the testator provided for the spouse outside the will with intent that the transfer be in place of a provision in the will.

Children born after the will. Two sections protect a child born after the will:

• If the testator had no child living when the will was made, and a later-born child is not provided for or mentioned, the child (or the child's descendant) takes the share he or she would have taken if the testator had died intestate (41-4-1).
• If the testator had a child living when the will was made, an after-born child who is not provided for by any settlement, and "neither provided for nor expressly excluded by the will, but only pretermitted," takes the intestate share (41-4-2).

In both cases the devisees and legatees contribute ratably, and the share reverts to the will's beneficiaries if the child dies under 18, unmarried and without issue, to the extent it remains unspent on support and education.

Gifts to people who die first. Under 41-3-3, if a devisee or legatee dies before the testator "leaving issue who survive the testator, such issue shall take the estate devised or bequeathed," unless the will provides otherwise. A share of a joint gift to someone who dies without issue does not go to the other joint beneficiaries; it passes as if the testator had died intestate, unless the will otherwise provides.

Homicide. Under 42-4-2(a), a person convicted of feloniously killing another, or of conspiracy in the killing, may not take property from the person killed "by descent and distribution, or by will, or by any policy or certificate of insurance, or otherwise."

No-contest clauses. Neither chapter 41 nor chapter 44D contains a section on no-contest (in terrorem) clauses.

How intestate shares are calculated is covered on the West Virginia probate page.

After death: delivering the will

Under W. Va. Code 41-5-1, a person with custody of a will must deliver it "within thirty days after the death of the testator is known to him" to the clerk of the county court having jurisdiction of probate or to the named executor. A person who, without reasonable cause, neglects to deliver a will "shall be guilty of a misdemeanor, and, on conviction, be punished by a fine not exceeding $200," and is also liable to any interested person for damages caused by the neglect.

Revocable living trusts in West Virginia

The trust code

Chapter 44D "may be cited as the West Virginia Uniform Trust Code" (44D-1-101), and it "takes effect on July 1, 2011" (44D-11-1104). Except as otherwise provided, it "applies to all trusts created before, on, or after July 1, 2011," and its rules of construction and presumptions apply to trust instruments executed before that date "unless there is a clear indication of a contrary intent in the terms of the trust instrument" (44D-11-1105(a)).

Creating a trust: a signed record

Under 44D-4-402(a), except for a trust created by court order, a trust is created only if the grantor has capacity, "The grantor indicates an intention, in a trust instrument, to create the trust," the trust has a definite beneficiary (or is a charitable, animal-care or permitted noncharitable purpose trust), the trustee has duties to perform, and the same person is not the sole trustee and sole beneficiary.

The definition of "trust instrument" supplies the formality: "a will of the grantor which is duly admitted to probate, or a record, signed by the grantor, that contains terms of the trust, including any amendments thereto" (44D-1-103). A living trust therefore needs a record signed by the grantor; the creation section adds no witness or notary requirement. Since June 6, 2024 (House Bill 5561, "relating to permitting the electronic execution of trusts"), the definitions let that record be "stored in an electronic or other medium" and let "Sign" include attaching or logically associating "an electronic symbol, sound, or process" (44D-1-103(19), (21)). The same definition states that "Record" does not include a will of the grantor unless the will is duly admitted to probate. And West Virginia departs from the uniform act on oral trusts: "Oral trusts are unenforceable in this state" (44D-4-407).

Capacity

Under 44D-6-601, "The capacity required to create, amend, revoke or add property to a revocable trust, or to direct the actions of the trustee of a revocable trust, is the same as that required to make a will."

Revocable by default, for newer instruments

Section 44D-6-602(a) states: "Unless the terms of a trust expressly provide that the trust is irrevocable, the grantor may revoke or amend the trust. This subsection does not apply to a trust created under an instrument executed before the effective date of this chapter." The default therefore applies to trusts created under instruments executed on or after July 1, 2011.

Section 44D-6-602(c) sets the method. The grantor may revoke or amend a revocable trust "(1) By substantially complying with a method provided in the terms of the trust instrument; or (2) If the terms of the trust instrument do not provide a method, by any other method manifesting clear and convincing evidence of the grantor's intent."

An agent under a power of attorney may exercise the grantor's powers to revoke or amend "only to the extent expressly authorized by the terms of the trust instrument or the power," and a conservator (or, if none has been appointed, a guardian) only "with the approval of the court supervising the conservatorship or guardianship" (44D-6-602(e), (f)).

For a trust created or funded by more than one grantor, unless the trust provides otherwise, the community-property portion may be revoked by either spouse alone but amended only by both; each grantor may revoke or amend the portion attributable to his or her own contribution; and the trustee must promptly notify the other grantors of a revocation or amendment by fewer than all of them (44D-6-602(b)).

The trustee's duties while the grantor is alive

Under 44D-6-603(a), "While a trust is revocable and the grantor has capacity to revoke the trust, rights of the beneficiaries are subject to the control of, and the duties of the trustee are owed exclusively to, the grantor."

Creditors

Under 44D-5-505(a)(1), "During the lifetime of the grantor, the property of a revocable trust is subject to claims of the grantor's creditors," whether or not the trust has a spendthrift provision.

Certification of trust

Under 44D-10-1013(a), "Instead of furnishing a copy of the trust instrument to a person other than a beneficiary, the trustee may furnish to the person a certification of trust." The certification states, among other things, that the trust exists and the date the instrument was executed, the grantor, the current trustee and address, the trustee's powers, whether the trust is revocable and who holds a power to revoke it, the trust's taxpayer identification number and the manner of taking title to trust property.

After the grantor dies: notice and the contest deadline

When a formerly revocable trust becomes irrevocable, by the grantor's death or otherwise, the trustee must, "Within a reasonable time" after learning of it, notify the current beneficiaries of the trust's existence, the identity of the grantor, the right to request a copy of the trust instrument and the right to a trustee's report (44D-8-813). The statute sets no fixed number of days for that notice.

The contest deadline is in 44D-6-604(a). An interested person may contest the validity of a trust that was revocable at the grantor's death within the earlier of:

• "Two years after the grantor's death"; or
• "Six months after the trustee has sent the interested person a copy of the trust instrument and a notice informing the interested person of the trust's existence, of the trustee's name and address, and of the time allowed for commencing a proceeding."

The section extends the time in two cases. A person who is under 18, or is a convict or mentally incapacitated person, has one year after coming of age or after the disability ends; and a person who lived out of state when he or she received the trust instrument and notice has one year after receiving them (44D-6-604(a)(2)). The trustee may distribute the trust property without liability unless the trustee knows of a pending contest, or a potential contestant has notified the trustee and starts a proceeding within sixty days after sending the notification (44D-6-604(b)). A beneficiary of a trust later determined to be invalid "is liable to return any distribution received" (44D-6-604(c)).

Pour-over wills

W. Va. Code 41-3-8 allows a will to leave property to the trustee of a trust. A trust created at the testator's death by the will's devise qualifies "if the trust is identified in the testator's will and its terms are set forth in a written instrument, other than a will, executed before, or concurrently with the execution of the testator's will or in another individual's will if that other individual has predeceased the testator." A lifetime trust established by the testator, by the testator and another person, or by someone else also qualifies (41-3-8(a)(i)).

"The devise or bequest is not invalid because the trust is amendable or revocable, or because the trust was amended after the execution of the will or the testator's death." Unless the will provides otherwise, the property becomes part of the trust rather than a testamentary trust, and "a revocation or termination of the trust before the testator's death causes the devise or bequest to lapse" (41-3-8(b), (c)).

West Virginia wills and trusts at a glance

Making a will in practice

The site's free West Virginia will-maker tool can help draft a basic will. Whatever produces the document, signing must follow W. Va. Code 41-1-3: a typed will needs two witnesses present at the same time who sign in the presence of the testator and each other. Complex estates, blended families, business interests or tax concerns are reasons to consult a lawyer licensed in West Virginia. The tool is not legal advice.

Related pages

• Wills and trusts laws by state
• West Virginia probate
• West Virginia small estate affidavit
• West Virginia power of attorney laws

This article provides general legal information about West Virginia law on wills and revocable trusts as of 2026-10-20. It is not legal advice. For advice about a specific situation, contact a lawyer licensed in West Virginia.

Last updated: 2026-10-20.

Frequently Asked Questions

How many witnesses does a will need in West Virginia?

Two competent witnesses, present at the same time, who sign in the presence of the testator and of each other, unless the will is wholly in the testator's handwriting (W. Va. Code 41-1-3).

Is a handwritten will valid in West Virginia?

Yes, if it is wholly in the testator's handwriting and signed; section 41-1-3 then requires no witnesses. A typed or partly typed will needs two witnesses.

Does a will have to be notarized in West Virginia?

No. Section 41-1-3 does not require a notary. Witnesses may sign affidavits before an officer authorized to administer oaths under 41-5-15, which are admissible at probate if preserved with the will, but not if the will is contested.

Can I make an electronic will or use remote witnesses in West Virginia?

Chapter 41 has no electronic-will or remote-witnessing provision, and section 41-1-3 requires witnesses present at the same time who sign in the testator's presence. Remote notarization under 39-4-37 covers notarial acts, not the witnessing of a will.

Are oral wills valid in West Virginia?

Section 41-1-3 requires every will to be in writing, so an oral will is not valid under it. Section 41-1-5 keeps an older exception for a soldier in actual military service or a mariner at sea disposing of personal estate.

Does divorce revoke a will in West Virginia?

Divorce or annulment after the will revokes the will's gifts and powers of appointment for the former spouse and any nomination of the former spouse as executor, trustee, conservator or guardian, unless the will expressly provides otherwise (41-1-6). Remarriage to the former spouse revives them. The section applies to divorces effective after June 5, 1992, and 36-12-13(a) makes the transfer-on-death deed rules subject to it; see the divorce section.

Is a living trust revocable in West Virginia?

Yes for a trust created under an instrument executed on or after July 1, 2011, unless its terms expressly make it irrevocable (W. Va. Code 44D-6-602(a)). That default does not apply to trusts created under earlier instruments.

How long do you have to contest a revocable trust in West Virginia?

Under 44D-6-604, within the earlier of two years after the grantor's death or six months after the trustee sends a copy of the trust instrument and the required notice, with longer periods for minors, incapacitated persons and out-of-state residents.

Can a spouse be left out of a will in West Virginia?

A surviving spouse of a decedent domiciled in West Virginia may elect a share of the augmented estate that rises from 3% after one year of marriage to 50% after 15 years (42-3-1). The petition is due within nine months after death or six months after probate, whichever is later (42-3-4).