How Probate Laws Work in West Virginia

If you have a probate case in West Virginia, you should take a few minutes to learn about the process and the particular rules for probate law. Because each state has its own laws on the probate process, the rules, deadlines and requirements you must follow can differ widely from state to state. Therefore, it’s important to know those particular probate timelines and regulations that are pertinent to you as a resident of West Virginia.

Typically, probate law is not something people think about until they are faced with the loss of a loved one whose estate is in probate. But when you are grieving a death in the family, the last thing you want to deal with is a complicated, lengthy and often costly probate situation. By preparing now with proper estate planning, you can understand the probate process in West Virginia and be ready for probate when you’re faced with it.

Here we will break down the key facts, deadlines and requirements for probate law in West Virginia.

What is Probate?

Probate is the legal process for settling the estate of a deceased person after his death, including transferring any assets and property of the estate to the proper beneficiaries. Probate also involves paying any outstanding debts and taxes that may remain on the estate. Most importantly, the purpose of the probate process is to honor the deceased’s final wishes, including transferring the property and assets to heirs and beneficiaries as was intended prior to death. All of this must be done in compliance with the state probate laws in West Virginia.

Is Probate Required in West Virginia?

Yes, the settling of an estate—whether under the terms of a will or under default intestate rules—must occur according to West Virginia law.

In most cases, the deceased person’s final wishes are stated in a will document with named heirs, transfers and assets. But in the case that a deceased person does not have a will, West Virginia law steps in and directs us how to distribute and settle the estate according to the probate laws and processes.

Formal probate process will be mandated if there are any disputes among beneficiaries, heirs, creditors or other parties with interests in the estate. Disputes may also arise between these parties about the terms or instructions of the will. If that’s the case, then probate must occur “formally,” under the supervision of a West Virginia judge. Also, a court must be involved in probate if the settling of the estate involves the guardianship of a minor or incapacitated adult.

However, West Virginia does have a few exceptions to the required probate process, which can be quite lengthy and complicated.

How do you Avoid Probate in West Virginia?

First, there is a shortcut in state law that give us a way around formal probate for “small estates.” If the total value of the estate’s assets is $100,000 or less, then you may move forward under a simplified probate process that can proceed outside of formal court supervision. Importantly, this threshold value of $100,000 does not need to include any real estate assets, so they do not count toward the total value to qualify.

Under the simplified probate shortcut, the executor of the estate (also called the “personal representative in West Virginia) files a legal document called an “affidavit” with the local district court where the deceased person lived. This must occur after the executor gave notice of the death and the intent to close the estate. The affidavit must also state:

This simplified, probate shortcut for West Virginia estates is also available in situations outside of the “small estate” exemption. The simple affidavit probate method can also occur if: 

Another way to avoid formal probate in West Virginia is by creating a living trust. Under state law, this living trust document allows you to avoid formal probate for almost any asset you own, including your real estate, vehicles, bank account and investment accounts. This living trust document works similarly to a will, and it names someone who will take over as your trustee after your death (called a “successor trustee” in West Virginia). It is important to note that for the living trust to function properly, you must transfer ownership of your property to yourself as trustee of the trust. Then, all of that property will be controlled by the terms of your living trust until your death. Then, at your death, your successor trustee will be able to transfer all of the trust’s assets to your heirs and beneficiaries – all without formal probate court proceedings.

Can an Executor of an Estate in West Virginia Be Compensated?

It’s common for individuals asked to serve as an executor of an estate whether they may be fairly compensated for their work administering the estate. In West Virginia, the answer is, yes, the personal representative of an estate can be paid for any costs and fees the personal representative incurs while working to settle the estate. The personal representative can also be compensated for their time spent working through probate to settle the estate. 

How Much Does an Executor get paid in West Virginia?

West Virginia law first defaults to the terms of the will to set the compensation for personal representatives. Whatever the will sets forth will be paid, whether it’s a percentage of the estate assets, a lump sum, or assets such as bank accounts, real estate or physical property. 

If the deceased person’s will does not specify how the personal representative will be compensated, then West Virginia law outlines the terms for their payment. The compensation calculation is based on a percentage of the estate’s total value, outside of any real estate, with a range of thresholds for the personal representative compensation: 

All of these payments and assets are transferred to the personal representative from the funds of the estate. 

How Long Does Probate Take in West Virginia?

The length of the probate process depends on several factors, including the size of the estate, the amount and type of assets, and whether any disputes arise between the estate’s heirs and creditors.

An estate that qualifies as a “small estate” worth less than $100,000, probate can be as quick as a few months to allow sufficient notice to beneficiaries and creditors to make any claims against the estate. 

However, if the estate is complicated or contested, then more formal, court-supervised probate proceedings will be required. This process can take two years, or even longer, and it can be quite costly. 

Do all Estates Have to Go Through Probate in West Virginia?

No, not all estates must go through the formal probate process under West Virginia law.

As described above, smaller estates (valued at less than $100,000 not counting real estate) and any property that passes to beneficiaries by living trust document can avoid the complicated process of formal probate.

Additionally, you can add the designation of “payable on death” to your accounts, such as your savings account, certificates of deposit and other investment accounts. With this designation, you will still have the ability to control all of these assets and accounts until your death. After your death, your beneficiaries can claim their share of the assets directly from the bank or institution that holds the accounts with the payable on death designation.

West Virginia allows a similar designation for stocks, bonds and brokerage accounts with a “transfer on death” designation. If your investment accounts are registered with this designation, then whatever beneficiaries you name will inherit your accounts automatically upon your death. Just as with the small estates and living trusts exceptions to formal probate, both of these “payable on death” and “transfer on death” designated accounts will transfer to your heirs quickly and easily outside of formal court proceedings.

Another way of avoiding formal probate in West Virginia is by jointly owning property with another person under a “right of survivorship.” When you die, your surviving co-owner will automatically own 100% of the property. This type of co-ownership of property is typically associated with real estate holdings. Additionally, under West Virginia law, this type of joint ownership transfer is also available for properties owned as joint tenancies, where the co-owners do not necessarily need to be married. Joint tenancy is common for vehicles, bank accounts, and other valuable property, in addition to real estate. The key for joint tenancy ownership is that both owners own an equal share of the property. For both property owned by a “right of survivorship” and that owned as a joint tenancy, the transfer to the heirs and beneficiaries is automatic and avoids the costly formal probate process.

How Long do you Have to File Probate After Death in West Virginia?

West Virginia state law does not have a deadline for the maximum time allowed for the probate process to occur. In general, smaller, simple estates with no disputes between beneficiaries can be settled and closed within a matter of weeks. Larger, more complicated and contested estates could take months or even years to complete the formal probate process.

However, West Virginia law does provide us with a couple specific deadlines that must be followed in the probate process. First, if there is a will, it must be delivered to the county clerk within 30 days of the death, and the personal representative must thereafter submit the will to probate within “a reasonable time.” There is no specification in the West Virginia code for what “reasonable means.”

The next specific deadline is in relation to creditors of the estate. If there is anyone to whom the deceased person owed money, they have only 60 days to file a claim against the estate to get paid. No claims for repayment from the estate will be accepted after this 60-day period.

Settling an Estate in West Virginia

The process for probate requires following certain steps, all according to West Virginia state law.

Overall, the probate process is managed by the personal representative of the estate. This individual may be named in the will, or if no one is specified in the will or there is no will, then he or she is selected after the deceased person’s death. If necessary, the state court will appoint a person to fulfill the role.

This personal representative leads the entire probate process, which includes:

If there are any remaining funds after all debts, benefits and taxes are paid out, then the personal representative may distribute the remaining assets to beneficiaries and complete the probate process.

Probate Court in West Virginia

The probate court assigned to the state district court where the deceased person lived. The West Virginia court system sets forth resources for you if you find yourself involved in the probate process, whether as a family member, creditor or beneficiary, or as a personal representative named to manage the probate process.

Many of the county courts have websites that guide you through the probate process. Your first resource is to check your local county court’s website for their helpful guide. For example, Monroe County Court has published a guide here:
https://www.monroecountywv.net/Probate.html.

Several county court websites also have links to self-help forms that you can print at home, including forms for claims against the estate and the forms to file when final settlement has been accomplished. 

Probate Code in West Virginia

You can find all the relevant state laws about the probate process in Chapter 44 of the West Virginia Code. This is your best primary resource for learning about the probate process, understanding your rights and determining all relevant deadlines and requirements. These laws can be found here: https://www.wvlegislature.gov/WVCODE/Code.cfm?chap=44&art=1.

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