Property Rights

A Womans Right to Property Dower Rights Wills Estate Administration Landlord and Tenant Relationships
Contributor: Joyce Ofsa Excerpt from Women and the Law: A Legal Rights Handbook, Online Edition, 2007 by the West Virginia Womens Commission (www.wvdhhr.org/women/) and the Women Lawyers Committee of the West Virginia State Bar (www.wvbar.org/).
PLEASE NOTE: This book provides general information about the law and a background about legal matters. It is not intended to be used in lieu of legal advice on any individual problem and is not intended to create lawyer-client advice as to any individual problem. If you have a legal problem, you should contact a lawyer to provide advice on the particular laws that apply to your circumstance

A Womans Right to Property

As a West Virginia woman, do I have the right to own property? Yes. In West Virginia, women, whether married or single, have the right to own and to control their separate property. However, your ownership of property and the way you may sell or dispose of your property is often affected by changes in your personal relationships, whether from marriage; divorce; the death of a spouse, child or other relative; or even the birth of a child. After any of these changes have occurred in your life, you should think about how the event may have affected your property rights and what steps, if any, you should take to protect your rights or to otherwise control the disposition of your property.

What are the types of property in which I may have an interest? There are two types of property in which you might have an interestreal property and personal property. Real property is land and, generally, whatever is built on, growing on or attached to the land. For example, your house and yard are real property. Real property is often called real estate. Personal property is everything that is the subject of ownership, other than real property. For example, your furniture, clothing and car are personal property.

What happens to my property when I marry? There are two terms you should be familiar with concerning your property rights when you marry. Your property, whether real or personal, may be considered as either separate property or marital property. Separate property is property (1) that you own at the time of marriage, (2) that you inherit after marriage or (3) that you otherwise acquire after marriage but that remains separately yours. For example, if you own a house titled in your name before

marriage, it is your separate property. If one of your parents dies after you marry and you inherit any of their real or personal property, it is your separate property unless or until you have the real property titled in both your name and your spouses name or make a gift of the personal property to your spouse or to the marriage. Marital property is property acquired by either spouse during a marriage, other than his or her separate property. For example, if you and your husband purchase a home during your marriage, it is marital property. If either you or your husband owned a home before your marriage and your earnings have been used to remodel or otherwise make improvements to the real estate since the marriage, then the amount of any increase in the homes value is considered marital property. The concepts of separate property and marital property are particularly important in divorce proceedings in West Virginia. The law governing these proceedings specifically defines those terms and describes how separate and marital property are to be considered for equitable distribution of property upon divorce. (See the Family Law chapter of this handbook for more information.) Your lawyer will be able to further explain how your property rights are affected if you divorce.

How can I control what will happen to my separate property? You may control what will happen to your separate property after you are married by entering into an antenuptial or prenuptial agreement before you get married. This is an agreement made before marriage in which you and your future spouse describe your respective property rights during the marriage and your rights if one or both of you die. The agreement also may provide for the settlement of property if you go through a divorce, separation or annulment. (See the Family Law chapter for more information.) You also may control what happens to your property when you die by writing a will. Your will goes into effect only after your death, and you may change it at any time before your death. Another way to control certain portions of your property when you die is to provide for beneficiaries, or people to receive your property. For example, if you have a life insurance policy and name the beneficiary or beneficiaries, the policy proceeds are not part of your estate when you die but are distributed to the beneficiaries you have named.

What are my general ownership rights to property? The way in which your property is named, or titled, is very important, as you think about your legal rights in property. If you have a deed to real estate that is titled in your name only, then you have absolute ownership of the property. However, if you are married and dispose of your separate real estate, you must give notice to your spouse before or within 30 days of the sale or transfer of the deed to someone else. (See Dower Rights section.) The most common form of ownership of property with others is known as joint tenants with survivorship, or tenants in common. If you and your husband purchase a

home, your deed will most likely be titled in both of your names and you will be referred to as joint tenants with the right of survivorship. This means that if one of you dies, the survivor will own all the property because of the way the title to the property is held. If you own property as joint tenants without the right of survivorship, you may not dispose of the property by a deed without the other party joining in. Likewise, a will does not affect the way property held in this manner will be disposed of. If you own real estate with anyone else as tenants in common, you own an undivided interest in the property that is not subject to the right of survivorship. This means that when you die, the other owners do not get your share of the property. Your ownership interest passes to your heirs. You may dispose of your interest in this property by deed or by will. The same idea of title applies to personal property. If you own a bank account individually, the funds are considered your property and you have the power to dispose of them. If you own a bank account with your husband (or anyone else) as joint tenants, then either of you who survives the other will be entitled to all the funds. In this situation, the funds may not be disposed of by will and either party has access to all the funds at all times. It is important that you understand how your checking or savings accounts are titled. For example, there could be a problem in settling your estate if you added another person to your account for the sole purpose of signing checks, but after your death, it was learned that the person actually held a survivorship interest in the account because of how the account was opened or how the signatures were added. You should make certain that the signature and title documents on file at the bank properly reflect your intentions. This is particularly important if you are single and you want someone to have access to your accounts, in case of illness or other emergency or your death, but you do not want that person to own the property with you.

What should I know about inheriting property? If you inherit property, it is your separate property. Your title to it is granted by a will, or by the laws that divide property that is not covered by a will. In this event, there is no separate document that titles the property in your name. For example, if one of your parents dies and leaves real estate to you in a will, or it passes to you under the laws governing disposal of property not dealt with by a will, then there is no separate deed created. You are entitled to the property, and you have the power to dispose of the property by operation of law.

What are my rights if I rent property? As a tenant and not an owner of real property, you have certain legal rights that have not been discussed above. (See the section following on Equal Rights in Housing and the Landlord/Tenants Relationship section.)

What happens to our property when my spouse dies? The property of your deceased spouse may become your property by survivorship, intestate succession, designation of beneficiary on life insurance contracts, employee benefits plans or like assets, or by the terms of a will. Also, as a surviving spouse, you have certain property rights, even if no provision is made under a will. (See Dower Rights section.)

How do I inherit property by survivorship? To inherit property by survivorship, a deed (for real property), an automobile title, a stock certificate, a checking or savings account ownership document or other ownership document must specify that you and your spouse hold the property as joint tenants with the right of survivorship. Property then passes upon your spouses death to you and is not part of the assets to pass by will or intestate succession.

What is intestate succession? When a person dies without a will or dies leaving property not covered under the terms of a will, the property passes under the West Virginia laws of intestate succession, or descent and distribution. The law was recently changed and is quite complicated. Generally the surviving spouse (wife or husband) gets all the property, both real and personal, of the estate, if there are no other descendants of the deceased or if all the deceaseds surviving descendants are also descendants of the surviving spouse. This means if the person who died has no surviving biological children or grandchildren, or has surviving children but they are also the biological children of the living spouse, the surviving spouse gets everything. A surviving spouse is entitled to three-fifths of an intestate estate if there are birth children or grandchildren of the deceased and the survivor, but there are also children of the survivor who were not children of the dead spouse. A surviving spouse is entitled to one-half of an intestate estate if the surviving children were the biological children of the dead spouse but not the biological children of the surviving spouse. Therefore, you should keep in mind, especially with second or third marriages, what your property rights are, if you and your spouse do not have wills and your property is not titled with survivorship provisions. Having a will ensures, in most cases, that you will determine who gets your property after your death. For more information on the laws of property distribution without a will, please talk to a lawyer.

What happens to insurance money or employee benefit plans when my husband dies? To control the proceeds of your life insurance policy or your employee benefit

plan, you may name its beneficiary or beneficiaries. In this situation, the money or benefits are paid directly to the beneficiaries and are not subject to probate. However, if the money or benefits are made payable to an estate, rather than an individual person, then they are paid to the estate and are distributed under the will or by the laws of intestate succession. Therefore, to protect your familys interests, you should make certain that you and your husband have named each other as beneficiaries on life insurance policies or employee benefit plans.

Do I need a will if all my property is held in joint survivorship and the beneficiaries of my life insurance policy and employee benefit plan are named? If there is any other property that you own or control that you wish a certain person to have, you should name that beneficiary in a will. Also, you should consider who you would want to inherit your assets if you and your husband died together and who you would want to administer your estate if your husband was unable to do so. A clearly stated will eliminates any questions about how you want to dispose of property and gives you an opportunity to name whomever you wish to receive your property upon your death.

Dower Rights

What is dower? Is it recognized in West Virginia? Before 1992, West Virginia law recognized the common law concept of dower, which provided that either spouse was entitled to one-third interest in the others real estate upon a spouses death. The original purpose of dower was to provide some protection to a surviving spouse. West Virginia also recognized that a surviving spouse of someone who dies without a will was entitled to one-third of all the personal property of the deceased spouse if children survived and to all of the personal property if no children survived. Through the years, it was determined that dower was no longer a way to provide protection to a surviving spouse and that it made many real estate transactions very

difficult, since no one could convey real estate without having his or her spouse sign the deed to release the dower interest. On the other hand, there was concern that if dower were abolished, a spouse could own real estate and hide the fact, thus preventing an equitable distribution of assets in the case of a divorce. In 1992, the state legislature did away with dower and instead created a law requiring that a married individual notify his or her spouse of any intention to buy, sell or transfer any real property that would have been subject to dower rights before the 1992 law. So even though dower has been abolished, a spouse must be notified when the other spouse intends to buy, sell or transfer real estate. Do any other laws affect the share of property I would receive if my husband dies without a will? Yes. At the same time that dower was abolished, West Virginia became the first state to enact the new intestacy and elective share provisions of the Revised Uniform Probate Code, a national model of probate law. Under the new law, your intestate share is based on who the other descendants are who survive your husband. Your share may be the entire estate, three-fifths of the estate or one-half of the estate. The elective share provisions of the new law set forth the rights of a spouse who chooses to take her share of property as defined by the law instead of her share under the will. These rights are based on the length of the marriage and the assets of both spouses. The former law did not address the length of the marriage and did not take the assets of the surviving spouse into consideration. The new election formula in West Virginia law is somewhat complicated. Your elective share will vary according to the length of your marriage and the assets belonging to you and your husband. Therefore, you should talk with a lawyer about what your rights are, or might be, if you and your husband do not have wills, or if you want your elective share instead of the provisions your spouse has made in his will. Because of the complexity of the law, both you and your spouse should have a will, if you want to control the way your property will be settled after your deaths.

Wills

What is a will? A will is a document that explains all your wishes about the disposition of your

property when you die. If you do not have a will, your property passes to your heirs under the laws of descent and distribution. In recent years, these laws have become more complicated. Therefore, it is important that you write a will to have your property settled upon your death according to your wishes. Also, a will often makes the process of settling your estate go more smoothly. To make a will you must be at least 18 years of age and of sound mind. The will must be signed by the person making the will, who is called the testator. The testator should sign the will in the presence of two witnesses, who also must sign the will in the presence of the testator and each other. It is customary to have the witnesses signatures acknowledged by a notary public when the will is signed to ease the probate process. Otherwise, the witnesses must later acknowledge their signatures before the will can be probated. Neither the witnesses nor the notary should be related to the testator or be named as a beneficiary in the will.

Can I write my own will? In West Virginia, you can write a holographic will, which is a will completely in your handwriting. A holographic will does not need to be witnessed, but your intentions to dispose of your property must be clear. If you have written a holographic will, you should remember that it must be handwritten. It will not be valid if all or any part of it is typed. If you have any question about the validity of your will, you should talk with a lawyer.

Who else can write my will? Although many lay people advertise their ability to write wills, your will should be prepared by a lawyer. The law of probate is complicated and varies from state to state. There have been many lawsuits over the validity of wills and many heirs and beneficiaries end up in bitter disputes. You can best assure that your property will be disposed of according to your wishes without questions if you talk with a lawyer.

Can I change my will? Yes. A will has no legal force and effect until death; therefore, you may change your will at any time. You may do so by adding a codicil, which is an addition to the will that changes some part of it, or you may prefer to take back the whole will and prepare a new one. It is particularly important that you review your will if changes occur in your life, such as the death of your husband or children, the death of any of your beneficiaries or the death of your executor (the person you chose to administer your will). Unless a will states otherwise, a marriage, divorce or annulment occurring after a will has been written prevents the will from applying to your spouse. Thus, you should always ask your lawyer to review your will if you marry, divorce or annul your marriage.

Is there any way to provide for the care of my minor children in my will? Yes. If you are married, both you and your spouse should have wills. If you have minor children, you will want to name someone to act as guardian for your children, in case your spouse does not live longer than you. If you are divorced or separated and you have custody of your children, when you die, if the father of your minor children is still living, he will have a legal right to seek to be named as the childrens guardian. However, he may not want to raise the children, and, in any event, the court will be aware of and may consider your wishes if you name another guardian in your will.

Where should I keep my will? Your original will should be kept in a safe place, and you should tell the person whom you want to administer your will where it is. If you decide to keep your will in a safety deposit box, you should make certain that others besides you have access to the box, so they can easily locate the will to begin the settlement process. Also, if you prepare a new will, you should destroy the original of any earlier will so there will be no confusion over which will is valid.

Estate Administration

What is a personal representative? A person who administers an estate is called a personal representative. A personal representative named to carry out the provisions of a will is called an executor. A personal representative who administers an estate without a will is called an administrator. If you are named executor of a will or want to be appointed the administrator of an estate, you may proceed with or without a lawyer. If the estate is complicated, or if there are claims or questions that arise, you may need the help of a lawyer.

Is it necessary to probate an estate in West Virginia? Yes. If you have custody of a will, West Virginia law requires that you deliver the will within 30 days of the death of the person who wrote the will. The will is delivered to the county clerk in the county where probate is to occur or to the executor named in the will. The executor, in turn, offers the will to probate within a reasonable period. If you break this law without reasonable cause, you are guilty of a misdemeanor punishable by a fine of up to $200, and you may be liable to any person affected by the will for damages. If you fail to deliver a will, the county commission may issue a summons to force the will to be delivered. If there is no will, any property that does not pass automatically by survivorship, or that is not paid directly to a named beneficiary of an insurance policy, employee benefit plan or other type of asset, is to be distributed according to the laws of intestate succession or descent and distribution. The only way to make sure the laws are followed is to administer the estate.

How does estate administration begin? The county commission of the county where the person who wrote the will lived has jurisdiction of estate administration. If you have been named executor of a will, you should, within 30 days of the testators death, go to the county clerks office with a death certificate, the original signed will and the names and addresses of all of the beneficiaries under the will. If the witnesses did not have their signatures acknowledged by a notary, they must be present to testify that they signed the will. The clerk or deputy clerk of the county commission will handle your appointment and qualification as executor. Once the order of probate and appointment is completed, you will need several copies to perform your duties. For example, you will need a copy of the order to gain access to any bank accounts or to open safety deposit boxes to which you have not had access before. You should remember that the original will is kept by the clerk of the county commission and is recorded in the clerks office. A person who dies without a will is called an intestate. If you want to be appointed to administer an estate where there is no will, you should, within 30 days of the death of the intestate, apply for appointment as administrator at the county clerks office. You will need a death certificate and the names and addresses of all the heirs of the estate. You also will need to have an individual or a bonding company sign a bond as surety that you will properly serve as administrator. The clerk or deputy clerk of the county commission will handle your appointment as administrator. You will need copies of the order of appointment to perform your duties.

What are the duties of a personal representative? The personal representative (executor or administrator) takes possession, care and control of all of the personal property of the person who has died, verifies and pay the persons debts and distributes the remaining assets to the beneficiaries. The personal representative is also responsible for providing an inventory and appraisal of all real and personal property on forms furnished by the county commission. You will receive the forms when you begin the estate administration and they are generally self-explanatory. You should read the instructions and follow them carefully. Depending on the county and the size of the estate, the administration of the estate may be referred to the fiduciary supervisor or the fiduciary commissioner and an accounting may need to be filed. This will be explained to you when you seek appointment as the personal representative.

Am I entitled to be paid for serving as a personal representative? Yes. Usually, an executor or administrator is entitled to receive five percent of the receipts of the estate as payment for performing the duties of a personal representative. You are also entitled to receive reimbursement for reasonable expenses, including the cost of a surety bond.

Landlord/Tenant Relationships

What rights do I have as a renter in West Virginia? Under state law, renters (or tenants) in West Virginia enjoy several rights that protect them when they rent an apartment or house. Additionally, some cities have specific rights and duties that govern the landlord/tenant relationships in that city. Some of your basic rights as a tenant are as follows: 1. A landlord may not refuse to rent to you based on your sex, race, religion, color, blindness or other handicap or national origin. Also, in many circumstances the law does not allow a landlord to refuse to rent to you because you have children.

2. A landlord may not increase the rent during the rental period. A rental period can be for one week or for a number of years. 3. A landlord must maintain the premises to provide minimum acceptable living conditions, providing such things as water, gas, heat and secure doors. West Virginia law provides for a warranty of habitability in all rented apartments and homes. This means that the landlord must maintain the house or apartment in a fit and livable condition that meets health, safety, fire and housing codes. 4. A landlord must not interfere with your ability to enjoy the premises peacefully. In legal language, this kind of interference is called a breach of warranty of quiet enjoyment. 5. A landlord must provide a fire detector in every rented home or apartment. 6. A landlord may not interfere with your use of cable television services, including the initial installation of the service. The landlord/tenant relationship is usually governed by a lease, which describes your rights and duties and those of your landlord. If either you or your landlord violates a provision of this lease, the other party may bring a legal action against, or sue, the violator. Usually a lawsuit against a tenant will try to require the tenant to move out.

What is a lease? A lease is an oral or written agreement between a landlord and tenant that describes the obligations of each party. The period for the lease is usually one month or one year. Every item in a lease is negotiable, and you may bargain about any of the terms to be included in a lease. A landlord should provide you with a copy of any written lease as soon as the lease is signed.

What happens if the landlord doesnt repair the house or apartment to keep it safe? Both you and your landlord must abide by all terms of the lease. If the landlord fails to provide a service or maintain the property in a livable condition, you should consult a lawyer about whether you may move out and stop paying rent.

Can a landlord require me to pay a certain amount of money before I move in? Often a landlord will require you to pay a deposit before you may move in. The purpose of the deposit is to cover any costs from damage or loss of rent while you live in the house or apartment. There is no limit on the amount of deposit a landlord may require. The landlord must return the deposit to you after you move out, if you have not caused any more damage than normal wear and have made all rent payments. In West Virginia, you are not entitled to receive interest on your deposit.

What can a landlord do if I dont pay rent? If you do not do something that is required by the lease, including paying rent, the landlord may have you legally removed from the premises. This is called eviction. Before you can be evicted from a rented apartment or house, the landlord must have a legal reason and must state this reason in a legal paper called a complaint. Before you may be forced by the landlord or law enforcement persons to leave your home, a court must issue an order requiring you to move out. This can only be done after you have been given the chance to present your side of the story at a hearing. A landlord may evict you for a number of reasons. You may be evicted if the lease expires and you do not move out, if you are behind in the rent, if you fail to follow the terms of the lease or if you damage the house or the apartment more than normal wear. Additionally, if you do not have a written lease, you can be evicted at any time. However, the landlord must provide you with written notice one rental period (usually one month) before requiring you to move.

Can my landlord put my stuff out on the street and change the locks if I dont pay my rent by tomorrow? No! A landlord cannot take certain actions to remove a tenant. Specifically, a landlord cannot lock you out of the house, take any of your furniture or personal property or place you in jail. Further, a landlord cannot threaten to take any of these actions. If a landlord takes any of these actions, you can sue the landlord to stop that action.

What will happen if I go to court in an eviction case? The eviction case usually begins in magistrate court through a summary eviction or unlawful detainer action. A case can be moved to circuit court. Sometimes the landlord may be suing you just to get you to move out. Other times the landlord may be trying to get money damages that you have caused him or her to incur, such as back rent. It is very important for you to go to any hearings, even if you intend to move out or you cannot afford to hire a lawyer. Some eviction proceedings are very fast and only provide you with five days notice of the hearing. These proceedings are called summary eviction proceedings. You may defend yourself against lawsuits that seek your eviction through the following defenses: 1. You are not behind in rent; 2. The landlord breached or failed to perform a duty owed to you; 3. The apartment or house was not livable; 4. The eviction was to get back at you for a complaint you filed; or 5. You did not receive adequate notice of the eviction. You also have the right to have the matter heard by a jury and to appeal any decision to circuit court.

I live in a mobile home park. I am buying my trailer from a company, but I rent the lot that the trailer is parked on. Do I have any rights? Yes. The law that governs renting houses and apartments also applies to people who rent trailers or mobile homes. Another law applies to people who own or are purchasing a mobile home but rent the land where the mobile home is located. All these rights are included in a law, which landlords of mobile home parks must give you a copy of if you are moving into a mobile home park that has more than two rental units. If you are a tenant of a mobile home park, you must have a written rental agreement that includes the terms of the agreement, the rules of the community and a description of your duties and the landlords duties in the relationship. These agreements cannot keep you from selling your trailer. These agreements also cannot require charges, except rent, utilities and similar charges and provisions relating to security interests. Landlords in mobile home parks may not demand or collect any fee not included in the rental agreement. Landlords may not turn off your utilities if you fail to pay rent. You may end a rental agreement by giving notice to the landlord. There is a special provision in this law that makes the landlord give you an extended notice, if the landlord is changing the use of the mobile home park and is evicting more than 25 residents at the same time.

I am renting my house, but the money I pay is going toward a down payment. Is my landlord still required to fix the house? When you are renting a house or apartment and the money for that rent is being applied toward ownership of the home (such as land contract or rent/purchase agreement) the rights listed above for rental property may not apply to you. The best protection in the case of a rent/purchase agreement is to include in the agreement who will be responsible for maintenance and other related duties.

Where can I get help in protecting my tenant rights? If you believe that your landlord has violated your rights as a consumer, you may seek help from the West Virginia Attorney Generals Office. If you believe that a landlord has discriminated against you in renting to you or failing to rent to you, you may seek help from the Human Rights Commission.

Resources
West Virginia Human Rights Commission 1321 Plaza East, Room 108A Charleston, WV 25301-1400

(304) 558-2616 1-888-676-5546 wvhrc@wvdhhr.org West Virginia Attorney Generals Office Civil Rights Division 812 Quarrier Street, 4th Floor Charleston, WV 25301 (304) 558-0546 1-877-421-5074