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Jenkins Fenstermaker, PLLC

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Huntington, WV 25701-2225

Toll Free 800-982-3476

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Jenkins Fenstermaker, PLLC

215 S. 3rd Street

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Clarksburg, WV 26301

Toll Free 800-982-3476

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By Anna Melissa Price of Jenkins Fenstermaker, PLLC on 09/10/2020

Differences in Probate and Estate Administration in WV, KY, and OH

To the residents of the tristate area where West Virginia (WV), Kentucky (KY), and Ohio (OH) meet, the community is not strictly defined by the borders of the three states. Many of us work in one state but reside in another and travel across state lines for various business and personal reasons regularly. However, when it comes to legal matters like probate and estate administration, the rules and procedures that must be followed are determined by our state boundaries.

For anyone involved in the legal process of wrapping up an estate after another individual’s death, it is important to understand the differences in estate administration and probate in West Virginia, Kentucky, and Ohio.

What Tristate Families Should Know about Probate and Estate Administration

When a person dies, the people with an interest in the estate—family members and other loved ones or beneficiaries—often don’t know where to begin. The probate and estate administration process may seem overwhelming, especially to someone who hasn’t been through it before. Identifying the right questions to ask is a good place to start. Some of the important questions in estate administration include the following:

  • What is the difference between an executor and an administrator of a will and estate?
  • What does an administrator of an estate have to do?
  • What are the steps in the probate process in my state?
  • Does an estate always have to go through probate?
  • Where can I turn for help with probate and estate administration?

In this article, an experienced estate planning attorney from Huntington, WV law firm Jenkins Fenstermaker, PLLC will answer these questions and help get you on the path to efficiently navigating estate administration and probate in West Virginia, Kentucky, and Ohio.

What Is the Difference between an Executor and Administrator of a Will or Estate?

The terms executor, administrator, and personal representative may be defined and used differently by states across the US. WV, KY, and OH define executor and administrator of a will or estate in the same way: both terms name the person authorized to handle an estate, but an executor is identified by the will of the deceased or by other estate planning documents while the administrator is named by the court or clerk when no will exists or the will does not name an executor. In all three states, either the executor or administrator, once recognized by a court or clerk with jurisdiction, is commonly referred to as the personal representative of the estate.

What Does an Administrator of an Estate Have to Do?

In a general sense, the responsibilities of a personal representative in WV, KY, or OH are the same. The individual or entity—such as a bank or trust company—designated by the court to perform the administration of the estate has a fiduciary duty and must ensure the following:

  • Assets and debts of the estate are identified and valued;
  • Valid debts or claims of the estate are paid;
  • Assets are protected and properly managed;
  • Tax returns are prepared and filed as required by state and federal law; and
  • Remaining assets are distributed to the proper heirs.

What Are the Steps in the Probate Process in My State?

The steps required to ensure that the responsibilities of the executor and administrator of a will and estate are met vary by state. Probate should occur in the county or district where the decedent lived, but if property was owned in additional states, the filing of ancillary probate may also be necessary.

Probate in West Virginia begins with the filing of the death certificate with the clerk of the county commission. If a will exists, it should also be presented to the clerk at this time. Probate in Kentucky is initiated similarly, with the named executor requesting probate if a will exists or any interested party filing the appropriate paperwork in the district court of the decedent’s residence if the individual dies intestate—without a will.

Ohio probate begins with a slightly different process. Ohioans may file their wills with the probate court in their county of residence while they are still living. The probate process begins when, upon an individual’s death, the court delivers the will to the executor named therein. When an executor is not named, the court opens the will and holds it for an interested party to claim. If a will exists but is not filed before death or no will exists, an interested party can request probate and file the appropriate paperwork. In Ohio, the executor must next notify all potential creditors and heirs that probate has begun.

The next step in all three states is validation of the will. In WV, the process and requirements for proving a will are governed by WV Code § 41-1-3. In KY, the rules are set forth in chapter 394 of the Kentucky Revised Statutes (KRS). And in Ohio, chapter 5817 of the Ohio Revised Code (ORC) outlines the requirements for validation. WV, KY, and OH all permit holographic wills—documents written in the decedent’s handwriting—with some requirements as to the nature and contents of the document.

Once the will is validated, the personal representative must inventory and protect the estate, pay debts and taxes, and distribute the remaining assets to the appropriate heirs, as discussed previously. In WV and KY, the personal representative must submit a final accounting of all financial details and disbursements made by the estate, unless this requirement is waived.

The requirements of the probate and estate administration process can be complex, and the fiduciary duty of the personal representative is not to be taken lightly. It is highly recommended that executors and administrators of wills and estates consult with professionals, including an experienced probate attorney, in the various areas involved in estate administration. Likewise, heirs and beneficiaries of an estate should seek legal counsel when they have questions or concerns about probate and estate administration in WV, KY, and OH.

Does an Estate Always Have to Go through Probate?

Some assets are not required to be probated. These include some items that are co-owned and -titled, such as homes and vehicles, as well as some joint financial accounts or assets with a beneficiary designation. Such assets are referred to as nonprobate assets. However, all assets that don’t fit this description must pass through probate to be transferred to an heir.  Every estate should be probated because it is unlikely that all assets are nonprobate.  Further, probate can protect beneficiaries from creditors of the decedent.

State statutes governing probate in West Virginia, Kentucky, and Ohio also allow for simplified probate under specific conditions. West Virginia does not have a summary probate process per se, but the size of the estate may affect whether it must be referred to a fiduciary commissioner.

A surviving spouse or child may request simplified probate in Kentucky when the estate value is less than $15,000. Preferred creditors, as defined by KRS § 396.095, can also request payment of certain debts or taxes without the formal probate process.

Ohio probate may be simplified or waived if the estate is valued at less than $100,000 and is left entirely to the surviving spouse, if the probate estate (excluding nonprobate assets) is less than $35,000, or if the estate’s value is less than $5,000 plus funeral costs.

Where Can I Turn for Help with Probate and Estate Administration?

Whether you are an executor and administrator of a will or estate, an heir, a loved one involved in an estate dispute, or a debtor of the deceased in WV, KY, or OH, the counsel and representation of an experienced estate administration attorney can help you navigate the laws of your state in the most efficient way possible.

Attorney Anna M. Price of Jenkins Fenstermaker, PLLC will walk with you through the probate and estate administration processes in a caring and dedicated manner. Reach out to Anna today by calling (304) 523-2100 or completing the firm’s online contact form.