West Virginia: Revocable Living Trust Creation Requirements

Requirements one by one

Governing law and scope

West Virginia Code § 44D-1-101 names chapter 44D the West Virginia Uniform
Trust Code. It took effect July 1, 2011. Section 44D-11-1105 generally applies
the chapter to trusts created before, on, or after that date, while preserving
acts already done and limiting retroactive presumptions as the section states.

This page addresses creation and execution of an ordinary adult revocable
living trust, not specialized trusts, tax or public-benefit planning, creditor
strategy, or post-death administration.

Capacity, intent, and validity

Section 44D-6-601 uses will capacity for creating, amending, revoking, or
adding property to a revocable trust and for directing its trustee. Under
§ 41-1-2, a person under 18 or of unsound mind cannot make a will.

Section 44D-4-402 separately requires capacity and an intention, shown in a
trust instrument, to create the trust. The Trust Code defines that instrument
as a grantor-signed record containing the trust terms. Section 44D-4-406 makes
a trust void to the extent fraud, duress, or undue influence induced it.

Creation method, property, and funding

Section 44D-4-401 permits a lifetime or death-effective transfer to another
trustee, an owner's declaration over identifiable property, exercise of a
power of appointment, or a court order. A durable-power-of-attorney agent may
create or fund a trust during the grantor's lifetime only under express
authority.

Property includes real or personal, legal or equitable ownership interests.
For an owner declaration, the owner already holds the identified property; for
a transfer route, the relevant property transfer remains necessary. Signing a
trust instrument therefore does not replace a deed, assignment, account
change, or delivery required for a particular asset.

West Virginia also rejects a universal nominal-corpus rule. Section
44D-4-402(d)(1) says a trust is valid regardless of the corpus's existence,
value, or character. That rule does not convert a Schedule A description into
every asset-specific title transfer.

Beneficiaries, purposes, and same-person roles

An ordinary private trust needs a definite beneficiary ascertainable now or
later, though § 44D-4-402 also recognizes a trustee's selection power and
specialized statutory exceptions. Section 44D-4-404 requires a lawful,
possible, public-policy-compliant purpose that benefits the beneficiaries.

The owner-declaration route permits the grantor to serve as trustee. The same
person may also be a beneficiary when another present or future beneficial
interest prevents that person from being both sole trustee and sole
beneficiary. Section 44D-4-402(e) further prevents merger merely because the
trustees and beneficiaries are the same persons.

The trustee must have duties and accept office. Under § 44D-7-701, acceptance
occurs through the trust instrument's method or, when that method is absent or
nonexclusive, through delivery, exercise of powers or duties, other conduct,
or a signed record stating acceptance.

Instrument, signature, and revocability

Oral trusts are unenforceable under § 44D-4-407. The trust instrument must be
a record signed by the grantor. Sections 44D-1-103(19), (21), and (25) define
record and signature to include qualifying electronic form. The cited Trust
Code creation provisions do not impose a universal witness or notarization
requirement.

A trust within § 44D-6-602's post-effective-date default is revocable unless
its terms expressly make it irrevocable. The grantor may use the instrument's
method or, if it provides none, another method manifesting clear and
convincing evidence of intent. The statute does not make a writing delivered
to the trustee the exclusive fallback. An agent needs express authority in
the trust instrument or power of attorney.

Registration, certification, and real property

The Trust Code does not make court registration a creation step, and
§ 44D-2-201 says a trust is not under continuing judicial supervision unless
a court orders it. Section 44D-10-1013 instead permits a trustee to give a
certification of trust to a nonbeneficiary in place of the complete
instrument.

Real-property instruments remain separate. Section 36-1-1 requires a deed or
will for the land interests it specifies. Section 36-1-4a permits, but does not
require, an acknowledged memorandum of trust to be recorded with the county
commission clerk where trust realty is located. The memorandum gives notice
only of the information it includes, and the statute expressly says the full
trust agreement need not be recorded.

Practical distinction

The legal minimum for the trust record is not a universal asset-transfer
shortcut. A signed trust can establish the terms and an owner declaration can
cover identified owner-held property, while a deed or other transfer document
may still be needed to put a particular asset in the trustee's name or affect
third persons.

Statutes and sources

• W. Va. Code §§ 44D-1-101 and 44D-1-103 — Uniform Trust Code title and
  property, record, signature, and trust-instrument definitions. Official
  current text (accessed
  2026-07-30).
• W. Va. Code §§ 44D-4-401 and 44D-4-402 — creation methods and required
  elements, corpus rule, agent authority, and same-person roles. Official
  current text (accessed
  2026-07-30).
• W. Va. Code §§ 44D-4-404, 44D-4-406, and 44D-4-407 — trust purposes,
  improper influence, and unenforceability of oral trusts. Official current
  text (accessed 2026-07-30).
• W. Va. Code § 44D-6-601 and W. Va. Code § 41-1-2 — revocable-trust
  capacity and the incorporated will-capacity standard. Trust Code
  text and will statute
  text (accessed 2026-07-30).
• W. Va. Code § 44D-6-602 — revocability default and revocation or
  amendment methods. Official current
  text (accessed 2026-07-30).
• W. Va. Code § 44D-7-701 — acceptance or rejection of trusteeship.
  Official current text
  (accessed 2026-07-30).
• W. Va. Code §§ 44D-2-201 and 44D-10-1013 — judicial supervision and
  optional certification. Official current
  text (accessed 2026-07-30).
• W. Va. Code §§ 36-1-1 and 36-1-4a — deed requirement for specified land
  interests and optional memorandum of trust. Official current
  text (accessed 2026-07-30).
• W. Va. Code §§ 44D-11-1104 and 44D-11-1105 — effective date and
  application to existing relationships. Official current
  text (accessed 2026-07-30).