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Jenkins Fenstermaker, PLLC

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By Anna Melissa Price Of Jenkins Fenstermaker, PLLC on 08/03/2020
The Basics on Probate in West Virginia

When a loved one passes, picking up the pieces can be hard. Dealing with your grief can take time, but delays in wrapping up your loved one’s estate are not a good idea. Deadlines for probate filings start running on the date of death, making it essential for families to understand and successfully navigate probate in West Virginia in a timely manner. Whether your loved one left a valid will or you are without instructions on how to administer the estate, understanding the probate process in West Virginia (WV) is key to moving forward.

The Function of Probate in West Virginia

When someone dies, all of that person’s assets and debts become part of the decedent’s estate. Probate is the legal process by which the court verifies the validity of the decedent’s will and monitors, to varying degrees, the wrapping up of the estate—the payment of debts, including funeral expenses, and the distribution of assets to the rightful heirs and other claimants. Often referred to in WV as “settling an estate,” this process ensures satisfaction of the decedent’s debt and rightful claims and the proper distribution of estate assets under West Virginia probate laws.

Whether you’re an heir to an estate or serving as the personal representative, understanding probate in West Virginia is critical to preserving estate assets and winding up the decedent’s affairs.

Which Cases Require Probate in WV?

WV probate laws do not require a formal court process for settling an estate. Whether the decedent left a will is also not a determinative factor. Probate is always required for assets owned by the decedent alone. Assets held jointly with rights of survivorship or those that are payable on death do not pass through probate. Some examples of assets that can be titled this way include the following:

  • Real estate;

  • Cars, trucks, and other motorized land or water vehicles; and

  • Bank and financial accounts.

These assets pass to the joint tenant (co-owner) without going through the probate process. It is possible, and common, for an estate to have some assets that must be probated and others that pass automatically, outside of probate.

Some probate cases require the appointment of a fiduciary commissioner or supervisor. The probate cases that do not require this appointment can be found under WV Code § 44-3A-5. A fiduciary commissioner or supervisor need not be appointed if the following apply: :

  • The value of estate assets is $100,000 or less (not including real estate);

  • The surviving spouse or personal representative is the sole heir to the estate; or

  • The estate contains enough assets to pay its taxes and debts, and the parties agree that no disputes are likely.

The WV Probate Process: Where to Start

To prepare for the probate of a will or intestate estate (estate without a will), you first need to open an estate with the probate clerk in the county where the decedent resided at the time of death. If the decedent owned property outside of West Virginia, you may also need to open an ancillary probate case in the state where the property is located.

To initiate a probate case in West Virginia, you need to obtain and file in the appropriate county a certified copy of the death certificate within 30 days of the date of death. If the decedent left a will, that should be filed in the court as well. This “opens” the estate, which becomes a new legal entity authorized to wind up the decedent’s affairs and distribute estate assets. 

The decedent may have designated an executor, a personal representative to administer or manage the probate proceedings and the handling of the estate. If not, or if the decedent did not leave a will, any of the decedent’s heirs may petition the probate court to be appointed to serve in the capacity of an administrator. In all cases, pursuant to WV Code § 44-1-1, the executor or administrator has no authority to act in that capacity until qualifying, taking an oath, and posting a bond if needed. For ancillary probate matters, the personal representative would need to follow the probate process for appointment and estate administration required in that state.

Validating the Will and Identifying the Estate During Probate in West Virginia

If the decedent left a will, the first step in a WV probate case is validating the will. This means that the court must make a determination that the will is authentic. This step is called proving the will. A will that includes a notarized, self-proving affidavit signed by witnesses to its execution is self-proving. In all other cases, the witnesses to the will’s execution must testify under oath that they were present for the signing of the will.

Once the probate clerk determines the will to be valid in this way, the personal representative must identify and collect documentation showing the assets and debts of the estate using an appraisement and nonprobate inventory form. 

Identifying Heirs in WV Probate Cases

Probate in West Virginia also requires the personal representative to identify the decedent’s heirs. A will may identify by name the persons and entities to inherit specified assets or, alternatively, it may identify persons entitled to a stated share of the estate’s final value (less debts and valid claims). 

Where the decedent did not leave a will, the will cannot be proved, or the will is determined to be invalid, the West Virginia intestate succession statutes determine the heirs to the estate. Understanding West Virginia’s intestate succession laws can be difficult, making working with an experienced WV probate lawyer critical.

What it Means to Administer an Estate in Probate in West Virginia

The remainder of the probate process involves identifying and paying the debts of the estate, including funeral costs, and inventorying probate assets. Depending on the value of the estate, a fiduciary commissioner or fiduciary supervisor may oversee this process closely or, when applicable, allow the personal representative to handle the estate’s affairs without such close scrutiny. 

The personal representative must also prepare and file a tax return for the decedent and one for the estate, when necessary. The tax return for the year in which the decedent passed is due when all income tax returns are due, which is normally April 15. A federal estate tax return is generally due nine months after the date of death for estates that require an estate tax return. West Virginia does not assess estate taxes, so the personal representative may not need to file a state estate tax return.

The probate case may also see adversarial litigation. Lawsuits that would have been filed against the decedent may be filed against the estate. Creditors or other claimants may also pursue their claims in the probate case. Heirs may seek to change the personal representative or hold him or her accountable for alleged misconduct in handling the estate’s affairs. Usually, these matters must be settled by the county commission, a fiduciary commissioner, or a fiduciary supervisor before the personal representative may distribute assets to the heirs.

Only after paying all debts, taxes, and valid claims owed by the estate may the personal representative distribute the remaining assets to the appropriate heirs. This may require the personal representative to dispose of physical assets, such as selling the decedent’s real property, or close financial accounts.

Finding Professional Guidance for Probate in West Virginia

Probate in West Virginia requires a thorough understanding of estate planning, West Virginia probate laws, and accounting and tax principles, to name a few. Few handle these types of matters for themselves without professional assistance, and adding West Virginia probate laws and requirements to the mix presents additional complications. Anna M. Price of Jenkins Fenstermaker, PLLC, helps West Virginians navigate probate in WV by providing experienced guidance and litigation skills. Regardless of your relationship to the estate, you need sound counsel from a knowledgeable West Virginia probate lawyer like Anna. For a consultation, call her at (304) 523-2100 or complete this online contact form.