Disclaimer: This is general information, not legal advice. For advice about a specific estate or to protect your rights, consult a licensed West Virginia attorney.
Detailed Answer — How children inherit when someone dies without a will in West Virginia
When a person dies without a will (intestate) in West Virginia, state law governs who inherits and in what shares. The primary rules for descent and distribution are found in the West Virginia Code addressing intestate succession (see West Virginia Code, Chapter 42 — Descent and Distribution: https://www.wvlegislature.gov/WVCODE/Code.cfm?chapter=42&article=1).
Basic rule among children
If the deceased is survived by one or more children and no surviving spouse or other higher-priority relatives, the surviving children inherit the entire estate. Each surviving child takes an equal share.
Representation (when a child dies before the parent)
If a child of the decedent predeceased the decedent but left descendants (for example, grandchildren), those descendants generally inherit in place of the predeceased child by right of representation. Practically, that means the deceased child’s share is divided among that child’s descendants. This method follows the familiar “per stirpes” concept: a branch of the family steps into the deceased child’s place and receives that child’s share.
Examples (hypotheticals to show how shares work)
- Example A — Three surviving children: If the decedent is survived by three children and no spouse, each child receives 1/3 of the estate.
- Example B — One child predeceased but left two children: If the decedent had three children (A, B, C), but B died before the decedent and B left two children, then A and C each take 1/3, and B’s two children split B’s 1/3 share — each receiving 1/6.
- Example C — Multiple predeceased children with grandchildren: Each predeceased child’s own descendants share that deceased child’s portion. The estate is divided first into shares for each of the decedent’s children; any share belonging to a deceased child passes to that child’s descendants.
Who counts as a “child” for inheritance?
West Virginia law treats legally adopted children as the child of the adoptive parent for inheritance purposes. The rights of children born out of wedlock can depend on whether parentage (paternity) has been legally established. Stepchildren typically do not inherit as children unless they were legally adopted.
Practical notes on administration
When heirs are known (for example, surviving children and grandchildren), the personal representative or probate court will use the rules above to allocate shares of the estate. The court may require: a certified death certificate; the decedent’s asset and liability information; proof of legal relationships (birth certificates, adoption and paternity records); and inventories. The probate clerk or judge will supervise distribution if the estate goes through formal administration.
Where to read the law
Key provisions on descent and distribution are in the West Virginia Code, Chapter 42 (Descent and Distribution): https://www.wvlegislature.gov/WVCODE/Code.cfm?chapter=42&article=1. For procedural information about probate and administration, see the West Virginia Judiciary website: https://www.courtswv.gov/.
Helpful Hints
- Gather documents early: death certificate, wills (if any), marriage/divorce records, birth and adoption records for children and grandchildren, deeds, bank statements, and account statements.
- Confirm family relationships in writing: birth certificates and adoption decrees help the probate court confirm who qualifies as an heir.
- Understand representation: when a child has died before the decedent, that child’s descendants usually inherit that child’s share — they do not split the estate equally with the surviving children unless the statute or circumstances require it.
- Adopted children inherit like biological children; stepchildren do not unless adoption or another legal relationship exists.
- If parentage/paternity is unclear for a child born out of wedlock, prompt steps (e.g., genetic testing, court orders) may be needed to secure inheritance rights.
- Small estate procedures may exist that simplify administration; check with the county probate court or a West Virginia attorney about thresholds and forms.
- When heirs disagree about distribution, or when the estate is complex (real property in multiple states, business interests, tax issues, creditor claims), consult a West Virginia probate attorney to protect heirs’ rights.
For a precise application of these rules to your facts, speak with a licensed attorney in West Virginia or contact the local probate court. The rules above summarize typical outcomes under West Virginia intestacy law but do not replace individualized legal advice.