The information in this article is very general. For specific questions about your situation, you should talk to a lawyer.
What is probate?
Probate is a legal process that transfers a person’s property after they die. This process also makes sure that the person’s debts and taxes are paid and any expenses involved in the funeral are paid.
During the probate process, all of the person’s property goes into their estate. An estate is all of a person’s property after their death. Any debts are paid from the person’s estate and any gifts are made from the person’s estate. The probate process ends when the estate is closed.
Where do I start the probate process?
It is important to start the process in the right county. W. Va. Code § 41-5-4. For most situations, probate will occur in the county where the person who died was living at the time of death or the county where that person had property. If you have questions about where to file, you might want to contact the County Clerk’s office or talk to a lawyer.
How do I start the probate process?
To begin the probate process, you must get a certified copy of the deceased person’s death certificate and present this to the county clerk. If you have possession of the deceased person’s will, then you must bring this and present it to the county clerk as well. Failure to deliver the deceased person’s will to the county clerk’s office within 30 days is a misdemeanor offense. W. Va. Code § 41-5-1.
What are the steps in probate?
Note: This Information is Very General. The probate process may vary from county to county. The Process may be different from the process described below.
|1. Contact the County Clerk’s Office to Start Probate Process
||Take the will (if there is one) to the county commissioner’s office and present it to the county clerk. If there is not a will, you should take the death certificate.
|2. Appoint an Administrator/Executor
If an executor is appointed in the will, then that person is sworn in before the county clerk.
If no executor is appointed in the will, then the person’s heirs and anyone receiving gifts from the person’s estate can apply at the county commissioner’s office to be appointed as executor. Whoever is appointed is sworn in before the county clerk.
If there is no will, then the person’s heirs apply at the county commissioner’s office to be appointed as administrator. The law gives the surviving spouse preference in this process, but any heir can apply. Whoever is appointed is sworn in before the county clerk.
Form is filed, listing all of the person’s heirs and anyone receiving a gift under the person’s will.
|3. Appraise the Person’s Estate
The administrator/executor files an Appraisement of the Estate, listing all of the person’s probate property and its value. The administrator/executor also files a Nonprobate Inventory, which lists all of the nonprobate property and its value.
The requirements for the Appraisement are listed at W. Va. Code § 44-1-14. The requirements for the Nonprobate Inventory are listed at W. Va. Code § 11-11-7.
|4. Settle any Claims Against the Estate from Creditors
After the administrator/executor files an Appraisement and a Nonprobate Inventory, the county clerk publishes a Notice of Administration of the Estate. The person’s creditors have 60 days to file a claim against the person’s estate, alleging that the person owes them money. The administrator or executor can challenge any claims. The administrator/executor pays any and all claims against the person’s estate for debts and pays any taxes due. This includes any funeral expenses.
The administrator/executor must sell off the person’s property if the person does not have enough money on hand to pay all of the debts and taxes. This is often done by an estate sale. In addition, the administrator/executor must use the money raised by the sale of the person’s property to pay debts and taxes in the order listed in W. Va. Code § 44-2-21.
This is very important. The probate process cannot go any further until all of the claims and taxes are paid.
|5. Close the Estate
Once all of the person’s debts and taxes are paid, then the administrator/executor can finish the probate process. This can be done in two ways.
The first way is filing a Final Settlement. This lists all of the person’s property, the payments made for debts and taxes, any gifts made from the person’s property according to a will, any gifts made from the person’s property to the person’s heirs. It includes the receipts from any costs incurred in the probate process.
The second way to close the estate is to file a Waiver of Final Settlement, which states that no unpaid debts or taxes remain and everyone who is owed a gift from the person’s property has been told what they are getting.
The fiduciary commissioner or fiduciary supervisor will sign off on the Final Settlement or Waiver of Final Settlement and issue an order closing the estate. From this point on, no one can contest the will or the probate process.
|6. Distribute the Remaining Property
Once the estate is closed, the administrator/executor gives away the person’s remaining property to the people mentioned in the will or the person’s heirs, if there is no will.
Who is the administrator? Who is the executor?
Person dies with a Will: If you are an executor named in the will, then you must take an oath before the county clerk. W. Va. Code §§ 44-1-1; 44-1-3. If someone else is named as an executor in the will, they must do the same.
If there is no executor named in the will, then any heir or beneficiary under the will can apply to be appointed as administrator. W. Va. Code §§ 44-1-2; 44-1-4.
Person dies without a Will: The person who is in charge of settling the estate and managing the probate process in a situation where the deceased person dies without a will is called the “administrator.” Any heir of the deceased person can apply to be appointed as the administrator of the deceased person’s estate. W. Va. Code § 44-1-4. There is a mandatory preference for the surviving spouse of the deceased person. W. Va. Code § 44-1-4.
I’ve been appointed the administrator/executor of someone’s estate. Now what?
After taking the oath to become executor or administrator of a person’s estate, you must file a form that lists the names and addresses of (1) all of the person’s heirs; and (2) all of the people who receive something from the will. W. Va. Code § 44-1-13. This form is used to let all of these people know that the probate process is starting. The county clerk’s office should provide you with this form.
While you don’t have to list addresses for the people whose addresses you don’t know, you should try to find out their addresses if you think that you can find them out. W. Va. Code § 44-1-13. It is important that everyone get notice that the probate process is starting, if at all possible.
My family member died without a will. What do I do?
If your family member died without a will, you still need to go through the probate process.
The probate process is similar to that if there is a will, but it is not the same. The administrator goes through the probate process just like an executor. Instead of giving away the person’s property according to a will, the administrator gives away the person’s property to the person’s heirs, according to the law.
Depending on whether the person has children and whether the person’s surviving spouse has any children that are not also the person’s children, the person’s spouse takes between 50% and 100% of the person’s property. W. Va. Code § 42-1-3. Any remainder of the person’s property, or all of the person’s property (if they are not married), passes to the person’s heirs, in the following order:
- To children.
- If no children living, then to grandchildren.
- If no grandchildren living, then to great grandchildren.
- If no great-grandchildren, then to parents.
- If no living parents, then to siblings.
- If no living siblings, then to nephews and/or nieces.
- If no nephews and/or nieces living, then to aunts and uncles. At this point, the property is divided between maternal and paternal aunts and uncles: ½ to maternal aunts and uncles, ½ to paternal aunts and uncles.
- If no living aunts or uncles, then to cousins.
- If no living cousins, then to cousins’ children.
- If no living family members, then property passes to the State.
W. Va. Code § 42-1-3a.
Who is an heir?
Put simply, a person’s heir is anyone related to the person by blood. The definition of an heir is given in W. Va. Code § 42-1-1(16) and the order of heirs is listed out in W. Va. Code § 42-1-3a. An heir is the person’s:
- Nephews and nieces
- Great-nephews and great-nieces
- Aunts and uncles
- Cousins’ children
- Cousins’ grandchildren
- Great aunts and great uncles
- Second cousins
- Children of second cousins
If there are no living family members, then the State is the heir.
How do I know if I need to post bond?
You may have to post bond if you are an executor. The amount of bond required is equal to the amount of probate property in the estate. W. Va. Code § 44-1-7. The bond requirement can be skipped if the will states that the bond requirement is waived. W. Va. Code § 44-1-8.
The county clerk should tell you how much of a bond you need to post. Many insurance companies or bonding companies will issue bond for you. The county clerk may be able to refer you to an insurance company or bonding company that can work with you to post bond.
What’s an Appraisement? What’s a Nonprobate Inventory?
After you take an oath as an administrator or executor, you must fill out two forms: an “Appraisement of the Estate” and a “Nonprobate Inventory.” In these two forms, you must list all of the probate property and nonprobate property of the deceased person and its value. These are tax forms and you can get them either from the county clerk or the WV State Tax Department website.
What is probate property and what is nonprobate property?
|Probate (see W. Va. Code § 44-1-14)
||Nonprobate (see W. Va. Code § 11-11-7(a))
|Real estate that the person owns by themselves (only their name is on the deed/title) (e.g., tract of land owned only by the person, with only the person’s name on the deed)
||Real estate of which the person owns a part (e.g., family home owned by joint tenancy with right of survivorship with surviving spouse)
|Any personal property deeded or titled solely in the person’s name (e.g., automobile titled solely in the person’s name)
||Payable on death accounts that pay out to anybody else (e.g., P.O.D. account payable to the person’s children)
|Any of the person’s personal bank accounts
||Property in which the person has a life interest (e.g., home that is to go to person’s child upon the deceased person’s death, but which person has right to live in until their death)
|Any pets that the person owned and took care of
||Life insurance policy that pays out to someone other than the executor or administrator
|Personal effects of the person (e.g., diary, comb, etc.)
||Gifts made while the person was living, to be completed upon the death of the person. (e.g., gift of a family keepsake ring, given while the person was in hospice, expecting to die within 3 months)
What’s a fiduciary commissioner?
A fiduciary commissioner is sort of like a judge: they review everything filed in the probate process, resolve disputes between parties, and, ultimately, issue an order to finish the probate process.
Once you have filed the Appraisement and the Nonprobate Inventory, the estate will be referred to a fiduciary commissioner, a person who will oversee the rest of the probate process. In most counties, a fiduciary commissioner is appointed by the county commission to oversee the probate process. In the other counties, a fiduciary supervisor is appointed by the county commission to oversee the probate process. W. Va. Code §§ 44-3-1; 44-3A-3.
I’m an executor/administrator. How do I know who to pay what?
After you have filed the Appraisement and Nonprobate Inventory forms, the county clerk will publish what is called a Notice of Administration of the Estate. W. Va. Code § 44-1-14a. This notifies the public that the person’s estate is going through the probate process. You will have to pay a fee to the county clerk to get the Notice published. The county clerk’s office will have their fees posted in their office or on their website, if they have one.
The Notice tells anyone to whom the person owed money that they have 60 days to file a claim against the person’s estate to get paid. W. Va. Code § 44-1-14a. No claims against the estate may be filed after the 60 days have expired.
Anyone making a claim against the person’s estate must file with the county clerk an itemized statement of what they are owed. W. Va. Code § 44-2-5. This statement must be signed and notarized and include some proof that they are owed that amount of money. W. Va. Code § 44-2-5. Examples of proof might be a copy of a court judgment, a copy of a promissory note, or a copy of a utilities account statement listing the outstanding balance. These claims, with their accompanying proof, will be filed with the county clerk and a copy sent to you, so you know who to pay and how much to pay them.
You can challenge any claims by filing a “counteraffidavit,” a written statement explaining why you don’t agree with the claim. W. Va. Code § 44-2-6. You should include any proof that supports your challenge to the claim.
The fiduciary commissioner will schedule a hearing for each of you to present your arguments and proof, for or against the claim. You may want to have the advice and representation of an attorney at this hearing.
What do I do if I can’t afford to pay all of my family member’s creditors from the estate?
How do I close the estate?
There two ways to close the estate: (1) final settlement; or (2) waiver of final settlement. Generally, you must close the estate within 5 years of starting the probate process. W. Va. Code § 44-4-14a.
In a Final Settlement, the executor or administrator files a form that summarizes what the executor or administrator has done and asks for the fiduciary commissioner to approve of it.
In a nutshell, the Final Settlement lists all of the person’s property and what has been or will be done with it. The Final Settlement lists all of the claims against the estate that have been paid, the receipts of any property that was sold to pay the claims against the estate, all of the expenses incurred during the probate process. It also lists all of the gifts of the person’s property to be made according to a will, if there is a will, or all of the gifts to be made to the person’s heirs, if there is not a will.
The fiduciary commissioner reviews the Final Settlement and, if they approve of it, issues a Final Report. This Final Report is sent to everyone who receives a gift from the person’s will, if there is a will, or to the person’s heirs.
In a Waiver of Final Settlement, the executor or administrator, along with all of the heirs and all of the people who receive a gift from the will, sign a Waiver of Final Settlement form. This form states that:
- No unpaid claims against the person’s property remain;
- The 60-day time limit for making claims against the person’s estate has passed; and
- Everyone who is receiving something from the person’s will has been told what they are getting.
After a Final Settlement or Waiver of Final Settlement is filed, the fiduciary commissioner signs and approves of how the executor or administrator has carried out the probate process.
The executor or administrator is paid a commission and paid back any money that they spent out of their own pocket to complete the probate process. The person’s estate is now closed. Gifts are made to everyone who is listed as getting a gift in the person’s will. The probate process is completed.
What are some further resources for more information?
- Kanawha County Probate Office – Frequently Asked Questions article from the Kanawha County Probate Office about the probate process. Be aware, however, that this article is specifically about the probate process in Kanawha County. The process may be different in other counties.
- Senior Legal Aid of WV: Wills/Estate Planning FAQs – Frequently Asked Questions page from Senior Legal Aid, a non-profit organization serving elderly residents of West Virginia.
Where can I find out more about my county’s probate process?
- List of Links to County Government Websites – All 55 Counties – Use this link to find your local county clerk’s address and phone number.
- West Virginia Code – Use this link to read the West Virginia statutes on the probate process (W. Va. Code §§ 44-1-1 et seq.), wills (W. Va. Code §§ 41-1-1 et seq.), and how property passes to heirs when there is no will (W. Va. Code §§ 42-1-1 et seq.).
Where can I get an attorney?