Heirs Intestate Shares
Land is usually devised in a will. But when the land owner in West Virginia dies intestate, without leaving a will, the property is divided according to the distribution laws.
The spouse of the land owner will receive all of the real property if the land owner did not have any surviving children or if all of the surviving children are children of both the land owner and the spouse. The spouse receives 3/5th of an interest in the land if all of the land owner's surviving children are children of the land owner and the spouse has at least one child who is not a child of the land owner. The spouse receives half of an interest in the land if even one of the land owner's surviving children is not a child of the spouse. A former spouse who is divorced form the land owner at the time of his death will not receive any share of the land.
The interest in the land that does not go to the spouse goes to the children of the land owner by equal shares. If any of the surviving children dies, that person's interest is divided equally among the grandchildren.
Land Not Named in Will
Generally testators, or will makers, specify the land they are giving in the will. But sometimes real property may not be mentioned in the will. This scenario can result in the wrong people gaining title to the property.
Potential heirs can petition the circuit court for a hearing to decide who will own the land. West Virginia values the right of heirs to gain the land so much that they are given up to 20 years after the death of the land owner to make this petition.
The interested person must submit a petition to the circuit court identifying the real property and explaining her interest in the property and the interest of other heirs of the land owner.
The court will then hold a hearing in which all interested parties will present their evidence. The court will issue a ruling on the question of who has a right to the property. If you want to appeal the circuit court decision, you must appeal it to the West Virginia Supreme Court of Appeals.
A landowner can give land to an heir prior to his death that qualifies as an advancement, an amount that will be subtracted from a share of the estate. But the land owner must state in writing that the gift is an advancement in a writing at the time he makes the gift, or the heir who received the land must state in writing that the gift is an advancement.