Home › West Virginia Estate Planning › Last Will and Testament
West Virginia is the only state that answers this question with three-fifths. If all your children are also your spouse’s, but your spouse has a child from an earlier relationship, they inherit exactly 60% of your intestate estate — a fraction no other state uses. West Virginia also has a self-proving affidavit with a sting in the tail: it works right up until someone contests the will, at which point the statute makes it inadmissible. Handwritten wills are valid here with no witnesses. Online services prepare a West Virginia-specific will for $199–$299. Every rule below cites the West Virginia Code.
Most West Virginia adults can finish a legally valid will in under an hour.
Two witnesses, a signature, and clear wishes — that’s the whole requirement. An online service like Trust & Will prepares a West Virginia-specific will with the witness pages ready to sign.
Disclosure: we earn a commission if you buy through the Trust & Will links here, at no extra cost to you. Complex situations belong with an attorney and we say so below.
West Virginia Will Requirements (2026)
W. Va. Code § 41-1-3 is one long sentence carrying four separate rules:
“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.”
| Requirement | West Virginia rule | Statute |
|---|---|---|
| In writing | Required — and West Virginia’s own e-signature law expressly excludes wills | §§ 41-1-3, 39A-1-3(b)(1) |
| Signed | By you, or by another in your presence at your direction, in a manner making it manifest the name is intended as a signature | § 41-1-3 |
| Witnessed | Two competent witnesses present at the same time, who subscribe in your presence and in each other’s presence — unless the will is wholly handwritten | § 41-1-3 |
| Attestation clause | Not necessary — the statute says so expressly | § 41-1-3 |
| Notarized | Not required for validity | § 41-1-3 |
West Virginia runs one of the strictest signing ceremonies in the country. Both witnesses have to be present at the same time, and each has to sign in front of you and in front of the other. There is no signing at separate times and no mailing the will to a second witness. Kentucky, Iowa and New Mexico impose the same mutual-presence rule; most Uniform Probate Code states do not.
Set against that strictness, the closing clause is generous: “no form of attestation shall be necessary.” West Virginia does not care what words appear above the witness signatures. Compare pre-2025 Louisiana, where a defective attestation clause made a testament absolutely null.
Who can make a will: section 41-1-2 states it as a disqualification — “No person of unsound mind, or under the age of eighteen years, shall be capable of making a will.”
Handwritten Wills Are Valid in West Virginia
The witness requirement in § 41-1-3 is expressly conditional: it applies “unless it be wholly in the handwriting of the testator.” A will wholly in your handwriting and signed needs no witnesses at all. No date is required either.
Like Kentucky and Mississippi, West Virginia never gives this rule its own section heading — it lives inside the execution statute’s conditional clause, invisible to anyone scanning the chapter for the word “holographic.”
“Wholly” means wholly. A preprinted will form with handwritten blanks is not wholly in your handwriting, so it needs two witnesses present at the same time signing in front of you and each other. The hybrid document — part printed, part handwritten, no witnesses — satisfies neither route and is the most common way a homemade West Virginia will fails.
Note also the signature standard: your name must appear “in such manner as to make it manifest that the name is intended as a signature.” A name written in the opening line — “I, John Smith, being of sound mind” — is not automatically a signature. Sign it as a signature.
West Virginia’s Self-Proving Affidavit Stops Working Exactly When You Need It
Section 41-5-15 lets the attesting witnesses, at the testator’s request, make and subscribe an affidavit before any officer authorized to administer oaths — in or out of the state — stating the facts they would testify to in court to prove the will. If you preserve the affidavits with the will and they are produced when the will is offered for probate, they are admissible and carry the same probative value as if the witnesses had appeared and testified.
Then the statute ends with this:
“Provided, That such affidavits shall not be admissible in evidence in any case in which there is a contest over the will.” — W. Va. Code § 41-5-15
The affidavit smooths an uncontested probate and is worth nothing in a contested one — and a contest is the only situation in which anyone actually argues about whether the will was properly executed. If your will is challenged in West Virginia, your executor needs the witnesses themselves.
Two practical consequences, and they cost nothing to act on:
- Choose witnesses who will outlive you and stay findable. Younger people, not contemporaries.
- Record who they were — full names and contact details, kept with the will. An illegible signature and nothing else is a problem your family inherits.
Electronic Wills Are Not Valid in West Virginia
West Virginia has not adopted the Uniform Electronic Wills Act — and unusually, its own electronic-signature law says so from the other direction. The Uniform Electronic Transactions Act at W. Va. Code § 39A-1-3(b)(1) provides:
“This chapter does not apply to a transaction to the extent it is governed by: (1) A law governing the creation and execution of wills, codicils or testamentary trusts…”
That matters because it closes an argument. In a state that is merely silent, someone might contend that general electronic-signature law validates an electronically signed will. West Virginia’s statute affirmatively removes wills from that law’s scope. A West Virginia will must be a physical document.
Dying Without a Will in West Virginia: the Three-Fifths Rule
Section 42-1-3 looks at both sides of the marriage, and produces a fraction found nowhere else:
| Your situation | What your spouse receives |
|---|---|
| No descendants survive you | The entire intestate estate (§ 42-1-3(a)(1)) |
| All your descendants are your spouse’s, and your spouse has no others | The entire intestate estate (§ 42-1-3(a)(2)) |
| All your descendants are shared, but your spouse has a child of their own | Three-fifths of the intestate estate (§ 42-1-3(b)) |
| You have a descendant who isn’t your spouse’s | One-half of the intestate estate (§ 42-1-3(c)) |
Read rows three and four together — the difference between them is which of you has the outside children. If the children from another relationship are yours, your spouse drops to one-half. If they are your spouse’s, your spouse drops only to three-fifths. West Virginia treats your own outside children as the greater claim on your estate, and prices the two situations differently.
The three-fifths figure is West Virginia’s signature. It follows the Uniform Probate Code’s structure — which is what makes it look at the surviving spouse’s side of the family at all — but where the UPC uses a dollar setaside plus a fraction, as in Minnesota’s $225,000 plus one-half, West Virginia uses a flat 60%.
Anything not passing to the spouse goes to your descendants by representation, then parents, then descendants of parents, then grandparents and their descendants split half paternal and half maternal (§ 42-1-3a).
West Virginia Death Taxes: the Statute Survives, the Tax Doesn’t
West Virginia has no inheritance tax. It does still have an estate tax statute, but it is a “pick-up” tax that computes to nothing.
Section 11-11-3 imposes a West Virginia estate tax “equal to the portion, if any, of the maximum allowable amount of federal credit for state death taxes” attributable to property in the state, and § 11-11-4 imposes “a tax in the amount of the federal credit” on a resident decedent’s taxable estate. Congress replaced that federal credit with a deduction for deaths after 2004. The credit the West Virginia tax measures itself against no longer exists, so the computation produces no tax.
You will find sources saying West Virginia has an estate tax and sources saying it has none. Both are misleading; the mechanism above is what is actually true. Arkansas is in exactly the same position. Compare the states in our state-by-state comparison.
What a Will Costs in West Virginia
| Route | Typical cost | What you get |
|---|---|---|
| Handwritten | $0 | Valid if wholly in your handwriting and signed — no witnesses needed, but the most-contested format |
| Online service | $199 individual / $299 couple | West Virginia-specific will with witness pages, done in about an hour |
| West Virginia attorney | Flat fees vary — the Eastern Panhandle and Charleston run above rural counties | Custom drafting plus a supervised signing with both witnesses in the room |
Online pricing verified against Trust & Will’s published rates (August 2026). The West Virginia State Bar publishes no fee survey, so we quote no attorney figures we can’t source. See how West Virginia compares with the rest of the country for national cost ranges and a state-by-state table of will requirements.
One West Virginia caution. If your family owns mineral rights, an online will is unlikely to be the end of it. Severed mineral interests fracture across generations of heirs faster than surface land does, and West Virginia probate courts see the results constantly. That is an attorney conversation.
What a West Virginia Will Does Not Do
1. A will does not avoid probate. West Virginia probate runs through the county commission and the fiduciary supervisor, on the public record. For the comparison, see what a living trust costs in West Virginia and our guide to avoiding probate.
2. A will does not prove itself if anyone objects. Because § 41-5-15 affidavits are inadmissible in a contest, your executor may need the witnesses in person. Pick them accordingly and write down who they are.
3. A will does not cover incapacity, and does not override beneficiary designations. Pair it with a durable power of attorney and a medical power of attorney — see the five documents every family needs — and keep your beneficiary forms current.
Will vs. Trust for West Virginia Families
Every West Virginia adult needs a will. No default rule names a guardian for your children, and the intestacy fractions turn on facts most couples never think about — including whether your spouse has a child you did not have together, which quietly costs them 40% of your estate.
There is no state death tax pushing West Virginians toward a trust, so the trust question here is about probate avoidance, privacy, and above all keeping land and mineral interests from splintering among heirs. Start with Trust vs. Will: Which Does Your Family Need? and the numbers in our West Virginia living trust cost guide.
If the will is what you need today, Trust & Will’s West Virginia package includes the witness pages, guardianship nominations, and healthcare documents — build your West Virginia will here.
FAQ
Does a will have to be notarized in West Virginia?
No. Validity takes your signature and two competent witnesses present at the same time, subscribing in your presence and in each other’s presence (§ 41-1-3). A notary appears only in the optional witness affidavit under § 41-5-15 — which is not admissible if the will is contested.
Are handwritten wills legal in West Virginia?
Yes, with no witnesses, if the will is wholly in your handwriting and signed. Section 41-1-3 imposes the witness requirement only where the will is not wholly handwritten. No date is required. A preprinted form with handwritten blanks does not qualify.
Can I make an electronic will in West Virginia?
No. West Virginia has not adopted the Uniform Electronic Wills Act, and its Uniform Electronic Transactions Act expressly does not apply to any law governing the creation and execution of wills, codicils or testamentary trusts (§ 39A-1-3(b)(1)).
Do both witnesses have to be together in West Virginia?
Yes. Section 41-1-3 requires two competent witnesses “present at the same time,” each subscribing in the presence of the testator and of each other. Signing at separate times breaks the will.
What happens if I die without a will in West Virginia?
Your spouse takes everything if you leave no descendants, or if all your descendants are theirs and they have no other children. If all your children are shared but your spouse has a child of their own, your spouse takes three-fifths. If any of your descendants is not your spouse’s, they take one-half (§ 42-1-3).
Does West Virginia have an estate or inheritance tax?
West Virginia has no inheritance tax. Its estate tax statute survives but measures the tax by the federal credit for state death taxes (§§ 11-11-3, 11-11-4) — a credit Congress eliminated for deaths after 2004 — so no West Virginia estate tax is collected.
West Virginia Law Cited on This Page
- W. Va. Code § 41-1-2 — who may not make a will
- W. Va. Code § 41-1-3 — must be in writing; witnesses
- W. Va. Code § 41-5-15 — proof of will while testator living
- W. Va. Code § 42-1-3 — share of spouse
- W. Va. Code § 42-1-3a — share of heirs other than the surviving spouse
- W. Va. Code § 39A-1-3 — Uniform Electronic Transactions Act, scope
- W. Va. Code §§ 11-11-3, 11-11-4 — estate tax imposition
Update log — August 2026: page created. Execution, holographic, proof-of-will, electronic-record, intestacy and estate-tax rules verified against the official West Virginia Code published by the West Virginia Legislature. Reviewed when West Virginia law changes.