How Probate Works in West Virginia

1) Present the will for probate and qualify as personal representative before the clerk of the county commission (an administrator is appointed if there is no will, with the surviving spouse preferred, then other distributees). 2) Take the oath and give bond unless excused. 3) Within 90 days after qualifying, file the appraisement of the decedent's real estate and probate personal property on the Tax Commissioner's form, together with the notarized nonprobate inventory form. 4) The clerk publishes a notice of administration once a week for two successive weeks; the personal representative mails a copy within 60 days after first publication to the spouse, beneficiaries or heirs, any trustee of the decedent's trust, and reasonably ascertainable creditors. 5) Claims are filed and, if needed, the estate is referred to a fiduciary commissioner to determine claims and shares. 6) Close by a waiver of final settlement, a report and affidavit of payment, or a settlement confirmed by the county commission.

In regular administration, if the appraisement shows probate assets of $200,000 or less (not counting real estate specifically devised and nonprobate assets), or there is only one competent beneficiary, the estate is not automatically referred to a fiduciary commissioner. The published notice states that settlement will proceed without a fiduciary commissioner unless, within 60 days of first publication, a party requests a reference or an unpaid creditor files a claim and shows good cause. The personal representative then files either a waiver of final settlement or a short report with an affidavit that all claims have been paid; the county commission may confirm it and discharge the representative. A waiver of final settlement may be used once more than 90 days have passed since the required notice and no known claims remain unpaid, signed by the beneficiaries (except those receiving only tangible personal property or cash bequests).

Claims must be filed within 60 days after the date of first publication of the notice of administration. A creditor who does not present a claim by the deadline in the notice is barred from recovering from the personal representative, except that a creditor with no actual notice may in limited cases recover from any undistributed surplus. Objections to the personal representative's qualifications or to venue must be filed within 60 days after first publication or 30 days after service of the notice, whichever is later.

An individual named as executor by a resident decedent may serve even if he or she lives outside West Virginia. A nonresident may also be appointed administrator of a resident decedent's estate under the normal priority rules (surviving spouse first, then other distributees; after 30 days without an application, creditors or other fit persons). Nonresidents generally must give bond with a corporate surety, though a nonresident who is the decedent's spouse, parent, sibling, descendant or sole beneficiary may give bond in the amount set under the ordinary rules, and a will can waive or limit bond for a nonresident executor unless the clerk or commission requires more. For residents, bond is not required if the will waives it, unless the county commission requires it; no surety is required of an executor who is the sole beneficiary or an administrator who is the sole distributee unless ordered.

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.

Under W. Va. Code chapter 41, article 5, a will is probated on motion to the county court having jurisdiction, or by its clerk when the court is not in session (41-5-10). Once admitted to probate, the will is recorded by the clerk and indexed in a general index of wills, and it stays in the clerk's office unless removed by court order or subpoena (41-5-17). To find a probated will or estate, contact the clerk in the county where it was probated.