Legal Question in Wills and Trusts in West Virginia

Re: married twice with children from both unions

Anybody can challenge a will. If the testator has testamentary intent, and capacity to make a will, which means he knows and understands who the natural objects of his bounty are and generally what his assets are, the will is valid. There is no statutory or common law restriction upon a competent person as to who he or she may will property. There is a provision which will allow a spouse to elect against a will and claim the "elective share" in West Virginia. This statutory provision replaced the dower entitlement which existed prior to 1992. The elective share is an amount that is determined by formula. Accounting for all assets that may pass by way of survivorship, such as bank accounts, life insurance, etc. the surviving spouse is entitled to an amount equal to a percentage of the estate. the percentage is a sliding scale depending upon how long the parties have been married, 3% for 1 year and up to 50% if married 15 years or more. There is no such provision to elect against the will for a child or children. If one were to die intestate, that is , without a will, then the laws of intestate succession dictate how the estate passes. All children are included with a share. Thus, in order to be sure your wishes are honored, you must have a will and you should consult with a lawyer to insure that it cannot be challenged because of capacity or defects in preparation and signing. You must also make sure the will is preserved and presented to probate. If the orignial is lost or stolen, it cannot be probated and the estate may pass by statute.