Detailed Answer: Probating an Unwitnessed or Unnotarized Will in West Virginia
Disclaimer: This article is for general information only and does not constitute legal advice. Always consult a qualified attorney about your specific situation.
Under West Virginia law, a valid will must meet certain formal requirements before a circuit court can admit it to probate. West Virginia Code § 41-1-4 requires that:
- The will be in writing and signed by the testator (the person making the will).
- The signature be at the end of the document or at the direction of the testator in the testator’s presence.
- At least two credible witnesses, aged 18 or older, sign the will in the presence of the testator and one another.
Notarization is not required under West Virginia law. However, without the two required witness signatures, the document generally fails to qualify as a valid will.
1. Check for Exceptions
West Virginia recognizes narrow exceptions for nuncupative (oral) wills made by active-duty service members or mariners under W. Va. Code § 41-1-6. These exceptions do not apply to handwritten or printed wills lacking witnesses.
2. Gather Available Evidence
If you only have an unwitnessed draft, assemble any available proof that the document reflects the testator’s final wishes:
- Affidavits from persons who heard the testator declare the paper as their last will.
- Proof of the testator’s handwriting (e.g., sample letters or notes) if you hope to argue a holographic will theory (not formally recognized in WV).
- Any contemporaneous correspondence or notes referring to the document as a will.
3. File a Probate Petition
To start the process, file a Petition for Probate in the circuit court of the county where the testator lived. Under W. Va. Code § 41-3-5, your petition must include:
- A certified copy of the decedent’s death certificate.
- The original will (if available) and any supporting affidavits.
- A proposed order admitting the will to probate.
The court clerk will set a hearing date and notify heirs and creditors.
4. Attend the Probate Hearing
At the hearing, the court will consider whether the document meets statutory requirements. If it lacks the two witness signatures, the judge will likely rule it invalid. If the court admits the will despite defects, it will issue Letters Testamentary to the named executor.
5. Intestacy If the Will Fails
If the court finds the will invalid, the decedent is deemed to have died intestate. The estate then passes according to the default rules in W. Va. Code § 42-1-1. Typically, this means assets go to surviving spouse, children, or other relatives.
Helpful Hints
- Preserve the original document; courts require the original to probate a will.
- Locate any potential attesting witnesses quickly—memories fade and evidence weakens.
- Collect letters, emails, or notes showing the testator referred to the document as a will.
- Review West Virginia Code §§ 41-1-4, 41-1-6, and 41-3-5 to understand procedural steps.
- Consider hiring an experienced probate attorney to guide you through filings and hearings.