How to Avoid Probate in West Virginia

Non-probate transfers available in West Virginia: (1) Transfer on death deed for real estate (W. Va. Code ch. 36, art. 12, esp. §§ 36-12-8, 36-12-9). (2) Bank deposits held in trust for another and deposits in more than one name with survivorship (W. Va. Code § 31A-4-33). (3) Transfer-on-death registration of securities in beneficiary form, which is nontestamentary (W. Va. Code § 36-10-1 et seq., esp. § 36-10-9). (4) Vehicles can pass to legal heirs without administration by Legal Heir Affidavit when there is no will (West Virginia DMV form DMV-185-TR). (5) Small estate affidavit (W. Va. Code ch. 44, art. 1A). (6) Revocable living trust (West Virginia Uniform Trust Code).

A successor of a decedent who died domiciled in West Virginia may use a small estate affidavit if the decedent's probate personal property is worth no more than $50,000 in total and the decedent owned no probate real estate (or interest in probate real estate). The affidavit, sworn before a notary, is filed for recording with the clerk of the county commission (or fiduciary supervisor) in the county of probate jurisdiction. A successor named as executor in the will may file once 30 days have passed since death; any other successor must wait 60 days. No bond or oath is required. The clerk mails copies to the named executor and the beneficiaries or heirs and issues a certificate and authorization that lets the successor collect and distribute the assets for six months (extendable once for up to six months for good cause). Interested persons have 30 days after mailing to file a written objection. Separately, after 120 days from death, holders of up to $5,000 in wages, accounts or other assets (and the Treasurer, for unclaimed property of $5,000 or less) may pay the surviving spouse or, if none, the heirs on an affidavit when no personal representative has qualified.

Yes. West Virginia has adopted the Uniform Real Property Transfer on Death Act. A transfer on death deed must contain the essential elements and formalities of a recordable deed, state that the transfer occurs at the transferor's death, and be recorded before the transferor's death in the office of the clerk of the county commission where the property is located. The transferor needs the same capacity as for a will. Recording it is exempt from the real estate transfer excise tax because no interest passes until death and the deed remains revocable.