Updated January 25, 2024
The West Virginia living trust is an agreement created by a person (Grantor) so they may protect and continue to use their assets while they’re alive and, when they die, the Beneficiaries are able to claim the assets left to them outside of probate. Furthermore, the contents of a living trust are not made public record when the Grantor dies, which is the case with a will. The Trustee (appointed by the Grantor) manages assets contained within the trust and is in charge of distributing them to the Beneficiaries upon the Grantor’s death. If the Grantor becomes mentally incapacitated, the Trustee can continue to carry out instructions within the trust instead of a court-appointed agent. Both revocable and irrevocable trusts help avoid probate court, but only irrevocable trusts have the benefit of protecting the Grantor’s assets from creditors and claimants, and saving on estate taxes after death.
Laws – Chapter 44D (Uniform Trust Code)
Will (Last Will and Testament) – Only takes effect after death of the creator and provides no protection while a Grantor is alive, or becomes physically or mentally incapacitated. Assets are distributed to named Beneficiaries through probate and is made public record.
Types
Irrevocable – This type of trust cannot be changed once the agreement has been signed. Ownership of property is transferred to the trust which helps protect it from unwanted claimants and estate taxes.
Revocable – Offers less protection but allows the Grantor/Trustee to make amendments at any point before death of the Grantor. Becomes irrevocable once the Grantor dies.
How to Make a Living Trust in West Virginia
In accordance with § 44D-4-402, a living trust can be created in West Virginia as long as the Grantor has the capacity to do so and indicates their intention in writing. The Grantor must appoint a Trustee to manage the contents of the trust (often themselves) and a Successor Trustee should anything happen to the Grantor or Trustee. Beneficiaries are named to inherit the Grantor’s assets once they pass away. The Grantor may name themselves a Beneficiary in order to make use of the assets during their lifetime. The Grantor cannot be the sole Trustee or the sole Beneficiary. It is advisable to sign a trust agreement in front of a notary public to avoid complications and contention. Once the trust is created, assets can be transferred into the trust.
Real Estate – The title of the property held by the Grantor should be transferred to the living trust using a West Virginia Deed. An attorney should be consulted in order to figure out which deed is most appropriate.
Motor Vehicles – Vehicles can be transferred to the trust by completing a West Virginia Bill of Sale. The title of the vehicle needs to be in the name of the trust and insurance companies should be notified of these changes.
Do I Need a Living Trust in West Virginia?
Those who own a large estate or many properties throughout West Virginia, and even out-of-state, might find a living trust helpful in avoiding probate and/or ancillary probate. West Virginia follows the Uniform Probate Code but the process can still be tedious and expensive. The distribution of assets within the trust is handled by the appointed Trustee; this allows the Beneficiaries to obtain control over the assets quickly and in a private manner. It’s important to assess the value of one’s estate, as well as the fees associated with the creation and upkeep of a living trust, before assuming it is less costly than probate. A simplified probate procedure is available in West Virginia for those with estates valued at $100,000 or less. A West Virginia Small Estate Affidavit can be completed and submitted to the judge for processing.