Complex Will with Trust - West Virginia

LAST WILL AND TESTAMENT

of
[FULL LEGAL NAME OF TESTATOR]
(Domiciled in the State of West Virginia)

TABLE OF CONTENTS

1. Article I—Preliminary Declarations
2. Article II—Definitions
3. Article III—Revocation & Payment of Debts
4. Article IV—Specific and General Bequests
5. Article V—Residuary Estate & Creation of Testamentary Trust
6. Article VI—The [NAME OF TRUST] Testamentary Trust
7. Section 6.01 — Creation & Funding
8. Section 6.02 — Trustee Designation & Succession
9. Section 6.03 — Beneficiaries & Distribution Standards
10. Section 6.04 — Administrative & Investment Powers
11. Section 6.05 — Fiduciary Standards & Indemnification
12. Section 6.06 — Accounting, Reporting & Tax Matters
13. Section 6.07 — Spendthrift & Creditor Protection
14. Section 6.08 — Termination & Final Distribution
15. Article VII—Guardianship of Minor Children
16. Article VIII—Tax Allocation & Apportionment
17. Article IX—Simultaneous Death & Disaster Clause
18. Article X—No-Contest (In Terrorem) Clause
19. Article XI—Governing Law, Forum & Miscellaneous
20. Article XII—Attestation, Execution & Attesting-Witness Affidavit

ARTICLE I — PRELIMINARY DECLARATIONS

1.1 Identification. I, [FULL LEGAL NAME], born [MM/DD/YYYY], presently residing at [ADDRESS], being of sound mind and eighteen (18) years of age or older, hereby declare this instrument to be my Last Will and Testament (“Will”).

1.2 Effective Date. This Will shall take effect upon my death.

1.3 Revocation of Prior Instruments. I hereby revoke all prior wills and codicils.

ARTICLE II — DEFINITIONS

Unless the context clearly requires otherwise, the following terms shall have the meanings set forth below:

“Accounting Period” means each calendar year, or such shorter period ending on the termination of the Trust.

“Beneficiary” means each person or entity entitled to receive income or principal from the Trust.

“Children” and “Issue” include only my lawful, biological, or legally adopted descendants, by representation per stirpes.

“Personal Representative” means the individual or institution appointed under Article III to administer my probate estate; used interchangeably with “Executor.”

“Trust” means the testamentary trust established under Article VI, titled the [NAME OF TRUST] Testamentary Trust.

“Trustee” means the fiduciary serving from time to time under Article VI.

ARTICLE III — REVOCATION & PAYMENT OF DEBTS

3.1 Personal Representative. I nominate [PRIMARY EXECUTOR] as Personal Representative. If he or she is unable or unwilling to serve, I nominate [SUCCESSOR EXECUTOR]. No bond shall be required.

3.2 Powers. After qualifying as required by W. Va. Code § 44-1-1, my Personal Representative may exercise the powers granted by applicable law and this Will.

3.3 Debts, Expenses & Taxes. My Personal Representative shall pay, from the residue of my estate, all enforceable debts, funeral expenses, estate administration expenses, and estate taxes attributable to probate assets, except as otherwise provided in Article VIII.

ARTICLE IV — SPECIFIC AND GENERAL BEQUESTS

4.1 Specific Bequests.
a. Tangible Personal Property. I give my tangible personal property to [NAME OR CLASS OF BENEFICIARY].
b. Charitable Gift. I give [DESCRIPTION/AMOUNT] to [CHARITY NAME AND ADDRESS].

4.2 Lapse & Anti-Lapse. If any specific beneficiary predeceases me, such bequest shall lapse into the residue unless the anti-lapse statute applies.

ARTICLE V — RESIDUARY ESTATE & CREATION OF TESTAMENTARY TRUST

5.1 Pour-Over to Trust. All property not effectively disposed of above (the “Residuary Estate”) shall pour over to and constitute the initial corpus of the [NAME OF TRUST] Testamentary Trust described in Article VI.

5.2 Funding Mechanics. My Personal Representative shall transfer, assign and convey the Residuary Estate to the Trustee, to be held, administered and distributed under Article VI.

ARTICLE VI — THE [NAME OF TRUST] TESTAMENTARY TRUST

Section 6.01 — Creation & Funding

(a) This Trust is created under authority of W. Va. Code ch. 44D and shall be deemed irrevocable upon my death.
(b) Funding shall consist of:

1. The Residuary Estate;
2. Any property passing to the Trust by beneficiary designation; and
3. Any additional property the Trustee accepts.

Section 6.02 — Trustee Designation & Succession

(a) [PRIMARY TRUSTEE] is appointed as initial Trustee.
(b) On death, incapacity, resignation, or removal of any Trustee, [SUCCESSOR TRUSTEE(S)] shall serve in the listed order.
(c) Vacancy. If no nominated Trustee serves, a majority of the then-adult qualified beneficiaries may appoint a corporate fiduciary authorized to act in West Virginia. If no appointment is made, a court with jurisdiction may appoint a Trustee.

Section 6.03 — Beneficiaries & Distribution Standards

(a) Primary Beneficiaries. The Trustee shall hold and administer the Trust for the benefit of [PRIMARY BENEFICIARIES].
(b) Discretionary Distributions. The Trustee may, in its sole and absolute discretion, distribute net income and principal for the health, education, maintenance and support (HEMS) of any Beneficiary. The Trustee must exercise this discretion in good faith under W. Va. Code § 44D-8-814.
(c) Mandatory Term Distribution. Upon the earliest of:

1. [BENEFICIARY] attaining age [AGE]; or
2. The date [NUMBER] years after my death,
   the Trustee shall distribute remaining Trust assets per capita among the then-living Issue of mine, free of trust. If none survives, the Trustee shall distribute the remainder to [ALTERNATE FINAL BENEFICIARY OR CHARITY]; if that beneficiary cannot take, to [SECOND ALTERNATE FINAL BENEFICIARY OR CHARITY].

Section 6.04 — Administrative & Investment Powers

Subject to fiduciary duties and the terms of this Will, the Trustee may exercise powers granted by this Will and permitted under W. Va. Code §§ 44D-8-815, 44D-8-816, and 44-5A-3 without routine court approval, including the power to:

1. Invest and reinvest in any kind of property;
2. Operate or liquidate a business;
3. Borrow, encumber, or mortgage Trust assets;
4. Allocate receipts and disbursements between income and principal;
5. Employ and compensate professionals;
6. Make tax elections and valuations.

Section 6.05 — Fiduciary Standards & Indemnification

(a) Standard of Care. The Trustee shall administer the Trust prudently, considering its purposes, terms, distribution requirements, and other circumstances, and shall exercise reasonable care, skill, and caution under W. Va. Code § 44D-8-804.
(b) Liability Limitation. Any term of this Trust relieving the Trustee of liability for breach of trust applies only to the extent permitted by W. Va. Code § 44D-10-1008, including its statutory qualifications. It does not excuse bad-faith or recklessly indifferent breaches or a term inserted through abuse of a fiduciary or confidential relationship with the Testator, subject to those qualifications. If the Trustee drafted or caused the term to be drafted, subsection (b) treats it as invalid unless either the Trustee proves that the term is fair and was adequately communicated to the Testator, or the Testator was represented by an attorney not employed by the Trustee who provided independent legal advice about the trust.
(c) Trust Expenses. This Will does not require the Trustee to advance personal funds for Trust expenses. Any reimbursement or indemnification from Trust assets is subject to applicable law.

Section 6.06 — Accounting, Reporting & Tax Matters

(a) Annual Statements. Within ninety (90) days after each Accounting Period, the Trustee shall furnish an accounting to all qualified beneficiaries. This direction supplements the reporting duties in W. Va. Code § 44D-8-813.
(b) Tax Returns. The Trustee shall prepare and file all required federal and state fiduciary income tax returns.

Section 6.07 — Spendthrift & Creditor Protection

The interests of Beneficiaries are subject to a spendthrift provision to the maximum extent permitted by W. Va. Code § 44D-5-502, and shall not be voluntarily or involuntarily alienated before distribution.

Section 6.08 — Termination & Final Distribution

Upon termination, the Trustee shall provide a final report, distribute remaining assets outright to the Beneficiaries entitled thereto, and request receipts from the distributees. Any release of liability is subject to W. Va. Code § 44D-10-1009.

ARTICLE VII — GUARDIANSHIP OF MINOR CHILDREN

If at my death I am the parent of a minor child, I appoint [PRIMARY GUARDIAN] as guardian of the person and property of such minor under W. Va. Code § 44-10-1. If that person is unable or unwilling to serve, I appoint [SUCCESSOR GUARDIAN].

If both parents appoint guardians, the appointee of the parent last living is entitled to custody under § 44-10-1. An appointee who renounces or fails to accept and give the required bond within six months after probate loses the appointment under § 44-10-2. If neither appointee qualifies, a court may appoint a guardian under § 44-10-3.

ARTICLE VIII — TAX ALLOCATION & APPORTIONMENT

Estate, inheritance and similar death taxes imposed on property passing under this Will shall be paid from the Residuary Estate treated as if a debt of my probate estate, without reimbursement from non-probate transferees, unless a governing instrument specifically directs otherwise.

ARTICLE IX — SIMULTANEOUS DEATH & DISASTER CLAUSE

If any Beneficiary and I die under circumstances making the order of death uncertain, such Beneficiary shall be treated as having predeceased me for purposes of gifts under this Will.

ARTICLE X — NO-CONTEST (IN TERROREM) CLAUSE

To the extent enforceable under West Virginia law, a Beneficiary who contests this Will or the Trust shall forfeit interests under this Will and be treated as having predeceased me. A good-faith proceeding to construe or clarify this Will or the Trust does not trigger this clause.

ARTICLE XI — GOVERNING LAW, FORUM & MISCELLANEOUS

11.1 Governing Law. This Will and the Trust shall be construed under the laws of the State of West Virginia without regard to conflict-of-law principles.

11.2 Forum Selection. Offer this Will for probate before the county commission of the county with jurisdiction under W. Va. Code § 41-5-4. A proceeding brought by a trustee or beneficiary concerning administration of this Trust belongs in a court with jurisdiction under W. Va. Code § 44D-2-203. A post-probate complaint to impeach or establish this Will under W. Va. Code § 41-5-11 belongs in the circuit court of the county where probate was allowed or denied; a party may demand a jury in that proceeding.

11.3 Bond Waiver. I direct that my Executor serve without bond, subject to the county commission's authority under W. Va. Code § 44-1-8. I do not require a bond of the Trustee, subject to the court's protective authority under W. Va. Code § 44D-7-702.

11.4 Severability. If any provision is held invalid, the remaining provisions shall remain in full force.

11.5 Headings. Captions are for convenience only and do not affect construction.

11.6 Execution Method. Nothing in this Will authorizes counterpart or electronic execution. Execute one written instrument with the Testator and both witnesses present together as required by W. Va. Code § 41-1-3. West Virginia's Uniform Electronic Transactions Act does not apply to the creation or execution of wills, codicils, or testamentary trusts. W. Va. Code § 39A-1-3(b)(1).

ARTICLE XII — ATTESTATION, EXECUTION & ATTESTING-WITNESS AFFIDAVIT

Executed this ___ day of __________, 20___, at ________________, West Virginia.

A. Testator’s Signature

_______________________________
[FULL LEGAL NAME], Testator

B. Witness Attestation

We, the undersigned witnesses, certify that the Testator declared this instrument to be his/her Last Will and Testament, signed it (or acknowledged a prior signature) in our presence, and that we signed below in the Testator’s presence and in the presence of each other.

C. Attesting-Witness Affidavit (W. Va. Code § 41-5-15)

State of West Virginia )
County of [COUNTY] ) SS

I/We, [WITNESS #1 NAME] [and WITNESS #2 NAME, if participating], being duly sworn, each state that the Testator signed this Will, or acknowledged the Testator's signature, in the presence of both attesting witnesses while they were together; that each affiant subscribed the Will in the presence of the Testator and the other attesting witness; and that, to each affiant's best knowledge, the Testator was eighteen (18) years of age or older, of sound mind, and acting voluntarily.

Subscribed and sworn to before me by the above-named affiant(s) this ___ day of __________, 20___.

_________________________________
Notary Public
My Commission Expires: __________

[Seal]

SCHEDULE A — SPECIFIC BEQUESTS (Optional)

FINAL PRACTICE CHECKLIST

• Confirm compliance with West Virginia witness and attesting-witness affidavit requirements.
• Verify fiduciary nominations satisfy client intent and statutory eligibility.
• Coordinate beneficiary designations (life insurance, retirement accounts) with Trust funding strategy.
• Review tax allocation clause for estate liquidity concerns.
• Update defined terms if additional concepts are introduced in customization.

© [YEAR] — Prepared for professional customization. All rights reserved.