Intestacy: When There’s No Will, There’s a Way

By Gracie Davis – Deputy Executive Assistant at West Virginia Senior Legal Aid, Inc.

When one dies without a will, that is known as “intestacy.” Intestate succession is meant to reflect what most people would want. If you die intestate, West Virginia statutory law ensures that your estate passes to your spouse and/or other relatives. The law regarding intestate succession may be found in the West Virginia Code. See W. Va. Code § 42-1-1, et seq. The law determines the recipients of your property, the amount the recipients receive (depending on whether you are survived by a spouse), and (if you have a spouse) the relation of any children you may have with your spouse. No, the government will not seize all of your estate if you die intestate.

If you die intestate and are not survived by a spouse, your estate will pass down in the following order: (1) descendants (children, then grandchildren, et cetera) related to you by blood; (2) parents; (3) siblings; (4) grandparents; (5) other relatives. For example, if your spouse is deceased when you die intestate, but you are survived by children, each child will receive an equal share of your estate.

If you are survived by a spouse, the spousal elective share will be given out first “off the top” before any intestate share to descendants after expenses such as taxes, administration, and creditors are satisfied. In most circumstances, your surviving spouse will inherit the entirety of your estate. However, if either you or your spouse has children from a previous relationship, your spouse will receive less than the entire estate.

When the surviving spouse has children from a previous relationship in addition to the children your spouse has with you, if you die intestate, your surviving spouse will receive 3/5 of your estate. The remaining 2/5 will be divided equally between your children, which does not include unadopted stepchildren.

If you have children from a previous relationship in addition to the children you have with your spouse, if you die intestate, your surviving spouse will receive 1/2 of your estate. The remaining 1/2 of your estate will be divided equally among your children.

If you have no surviving relatives or stepchildren, the money will escheat to the state, meaning the state government will then be able to receive your estate.

It should be noted that, even if one has a will to offer in probate, intestacy succession may still be applicable when the will wholly or partially fails. Typically, this is because there was an error in the will’s execution, and West Virginia is one of the 39 states that do not have the “harmless error rule” that would save a will that was not properly executed.

If you do not have a will and you are unsatisfied with how your estate will be distributed if you die intestate, please consult a licensed attorney about making a will. West Virginia Senior Legal Aid is dedicated to defending West Virginia seniors’ rights.