By Deb Miller, JD, WV Senior Legal Aid volunteer
Lots of people “forget” to have a will prepared.
Others believe that if they don’t do a will, the state will get everything anyway, but that’s not true.
When a person doesn’t leave a will, West Virginia intestacy law and beneficiary designations on financial accounts or property will control what happens next.
Intestate succession, meaning the deceased left no effective will, is not always a simple process. Whether there were multiple marriages with children is just one factor in determining how things will be handled and distributed.
Beneficiary designations are contractual and govern the after-death transfer of financial accounts and life insurance benefits when a person or nonprofit organization is named as beneficiary.
If only living children survive the deceased person who did not have a will, the children will receive equal shares.
That may or may not be a great idea, especially when one or more of the children may not have been a positive part of the parent’s or family’s life. If some helped a lot and others caused problems galore, a person may decide to give more to some than to others. The traditional way to assure that result is through completing a will, but it’s not the only way and may not be the best way.
Especially in situations where one or more of the children will serve as the caregiver, the intent of the parent may be to pass the family home to the primary caregiver.
For that to happen, a will is no longer needed. A new type of West Virginia property transfer called a transfer on death deed can make sure that one or more specific persons will receive ownership of the home and property at a future time.
Having an attorney prepare the transfer on death deed is needed.
Under the terms of the deed, the property ownership will not change until a person passes away and then the transfer to the new owner(s) will be automatic without any probate activity.
Also, the transfer on death deed is unique because it can be revoked if a person changes one’s mind.
Another option considered by some is a life estate arrangement which gives one or more persons the right to live in the home for the rest of their lives after a person passes away. When the heir’s life estate ends, others will inherit the property.
While this sounds workable on paper as a way to benefit the caregiver or others, generally the lack of funds to maintain the property often guarantees this will be a difficult arrangement. If the person living in the house has little income or doesn’t want to spend their money for needed work, such as a new roof or plumbing repairs, they may not do it. They will be required to pay the taxes and insurance on the property, but may not be able to afford the expense.
Another direction for helping certain children is through checking, savings, stock and retirement accounts. Having an after-death beneficiary listed on each account can make sure the right person receives the funds. The same is true of beneficiaries on life insurance and annuity plans.
Specifying beneficiaries for accounts is done with a form supplied by the company managing the account. It’s not the same as making a person or a nonprofit organization a co-owner.
Adding the beneficiary is easy to do and can be removed if needed. No change in control of the account occurs until a person passes away. This method gets around the need for a will for such assets and funds.
Some believe that verbal instructions about who gets what or a letter of instructions is as good as a will. That’s definitely not true. Such instructions have no legal effect at all.
Alternatives to a will can work and avoid the need for probate if a person understands what is involved and plan well.
For those West Virginia residents, age 60 and older, who have legal issues and want to speak with an attorney at no cost, call the West Virginia Senior Legal Aid hotline at 800-229-5068.