Legal Information

Probate: The West Virginia Small Estate Act

Dealing with property after death, Wills

Posted on 10/14/2022at7:55 pm

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.

What is the Small Estate Act?

Governor Jim Justice signed into law The Small Estate Act, which became effective July 1, 2021. The purpose of this new law is to provide an alternative to the traditional probate process for “small estates.” This alternative simplifies the process of distributing a person’s property after they die. It is meant to be less expensive and faster. If an estate qualifies, there is no bond required. It also requires less paperwork.

How do I know if an estate is a “small estate”?

An estate is considered a “small estate” if the person who died left behind probate personal assets not exceeding $50,000, and/or probate real property interests not exceeding $100,000.

Probate assets that would be considered in figuring out whether it’s a “small estate” are things like:

Some things do not pass through the probate process and would not be considered. These are things like:

For more information about what property goes through probate, please visit our probate article: Probate: The Process for Dealing with Property and Debts after Death. See also W. Va. Code § 44-1-14 and W. Va. Code § 11-11-7(a).

What if the estate does not qualify as a “small estate”?

Please visit our probate article for more information about the probate process for estates.

If the estate might qualify as a “small estate”, where do I start the probate process?

It is important to start the process in the correct county. The Small Estate Act requires that the person who died must have been a West Virginia resident. If so, then the probate process is to occur in the last county where the person who died lived. If you have questions about jurisdiction, you may want to contact the County Clerk’s office or consult an attorney.

How do I start the probate process under the Small Estate Act?

The Small Estate Act includes an affidavit to be used during the small estate probate process. W.Va. Code § 44-1A-2(e). You should contact the County Clerk’s office to see if they have an affidavit for you to use.  This is a sample affidavit you may be able to use.

To begin the probate process, you must submit the affidavit to the County Clerk’s office. If there is a known Will, its original copy must be attached to the affidavit. The earliest the affidavit can be submitted must follow these rules:

Once the county commission clerk or the fiduciary supervisor of the county commission clerk reviews the affidavit, they will determine if it is complete. If completed, it will be recorded and filed with any Will presented with it.

The clerk of the county commission or the fiduciary supervisor of the clerk of the county commission may require a certified copy of the decedent’s death certificate, proof of death or proof of residence.

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.

StepExplanation
1. Contact the County Clerk’s Office to Start Probate ProcessTake 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. Ask for an affidavit form to file under the Small Estate Act.
2. Fill out the Small Estate Affidavit The recorded Small Estate Affidavit is the appraisement of the estate. The County Clerk’s office will review the affidavit to affirm that the estate qualifies as a small estate.

If the decedent’s estate and assets qualify as a small estate, the authorized successor of the decedent may complete and file the Small Estate Affidavit with the County Clerk’s office. If the decedent left a Will, the original copy of the known Will should be attached to the affidavit. The County Clerk’s office may require a copy of the death certificate or other proof of death and residency.
 
If there is a Will, and the applicant is the nominated personal representative, the applicant may file the Small Estate Affidavit thirty (30) days after the person’s death. If there is a Will, and the applicant is not a nominated personal representative, the applicant may file the Small Estate Affidavit sixty (60) days after the person’s death. If there is no Will, the applicant may file the Small Estate Affidavit sixty (60) days after the person’s death.
3. Settle Any Claims Against the Estate from CreditorsAfter filing the Small Estate Affidavit, there is no newspaper publication. Creditors will not file claims with the County Clerk’s office. Instead, they will file claims against the authorized successor of the person who died, his or her heirs, and/or beneficiaries through magistrate or circuit court. If an heir or beneficiary believes they have been mistreated, they must also seek relief from the Magistrate Court or Circuit Court. Persons interested in filing an objection about the administration of the estate have thirty (30) days after the mailing of the affidavit. Creditors have two (2) years to make claims on the estate.
 
The authorized successor pays all claims against the decedent’s estate for debts and pays any taxes due. This payment obligation includes any funeral expenses. The authorized successor must sell off the decedent’s property if they do not have enough money to pay all the debts and taxes, which is often done by an estate sale. In addition, the authorized successor must use the raised money from selling the decedent’s property to pay debts and taxes in the order listed in W. Va. Code § 44-2-21
5. Close the EstateOnce all the decedent’s debts and taxes are paid, the authorized successor can finish the probate process. The closure can be done in two ways.
(1)   The first way is to file a Final Settlement. A Final Settlement lists all the decedent’s property, the payments made for debts and taxes, any gifts made from the decedent’s property according to a Will, and any gifts made from the decedent’s property to the decedent’s heirs. It includes the receipts from any costs incurred in the probate process.
(2)   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 decedent’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 PropertyOnce 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 an authorized successor? Who is a successor? What is the difference?

An authorized successor is the successor of the person who dies who files an affidavit and is certified and authorized by the clerk of the county commission or the fiduciary supervisor. W. Va. Code § 44-1A-1. In other words, an authorized successor is an heir or beneficiary of the person who died that has been granted the authority to administer the estate.

A successor refers to any person nominated as the personal representative under the deceased person’s will or entitled to some distribution of the deceased person’s estate in the Will. W. Va. Code § 44-1A-1. Unlike an authorized successor, you can be a successor and not administer the estate.

I’ve been appointed the successor, or personal representative, of someone’s estate. Now what?

If you have been appointed the personal representative of an estate, you will need to:

If approved, you can settle any claims against the estate, if any occur, distribute any assets outlined in the Will, if any, and close the estate.

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.

If there is no Will, you can file a Small Estate Affidavit sixty (60) days after the person’s death.

The probate process is similar to the process if there had been a Will, but it is not exactly the same. Instead of giving away the deceased person’s property according to a Will, the authorized successor gives away the person’s property to the person’s heirs, according to the law.

Depending on whether the deceased person has children and whether the person’s surviving spouse has any children that are not also the deceased person’s children, the deceased person’s spouse takes between 50% and 100% of the estate. W. Va. Code § 42-1-3. Any remainder of the person’s property, or all the person’s property (if they are not married), passes to the person’s heirs, in the following order:

  1. To children;
  2. If no children are living, then grandchildren;
  3. If no grandchildren are living, then great-grandchildren;
  4. If no great-grandchildren are living, then parents;
  5. If no parents are living, then siblings;
  6. If no siblings are living, then nephews and/or nieces;
  7. If no nephews and/or nieces are alive, then 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;
  8. If no aunts or uncles are living, then cousins; or
  9. If no cousins are living, then children of cousins.

If no family members are alive, the 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 in W. Va. Code § 42-1-1(16) and the order of heirs is listed in W. Va. Code § 42-1-3a. An heir is the person’s:

  1. Children
  2. Grandchildren
  3. Great-grandchildren
  4. Parents
  5. Siblings
  6. Nephews and nieces
  7. Great-nephews and great-nieces
  8. Grandparents
  9. Aunts and uncles
  10. Cousins
  11. Cousins’ children
  12. Cousins’ grandchildren
  13. Great-grandparents
  14. Great aunts and great uncles
  15. Second cousins
  16. Children of second cousins

If there are no living family members, then the property goes to the State.

How do I know if I need to post bond?

A bond is not required for a small estate unless a personal representative is appointed under a will. W. Va. Code § 44-1A-2(d).

What’s a fiduciary commissioner?

A fiduciary commissioner is 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 Small Estate Affidavit, the estate will be referred to a fiduciary commissioner or supervisor. This is a person who will oversee the rest of the probate process. In most counties, a fiduciary commissioner or supervisor is appointed by the county commission to oversee the probate process. W. Va. Code §§ 44-3-1; 44-3A-3.

What do I do if I can’t afford to pay all of the deceased person’s creditors from the estate?

If you can’t pay all of your family member’s creditors from the person’s available money, you must sell off the family member’s property and pay the creditors in the order listed in W. Va. Code § 44-2-21W. Va. Code §§ 44-1-18 to -20. You may have to sell the family member’s land or home in order to pay creditors. W. Va. Code § 44-8-7.

How do I close the estate?

The Small Estate Act does not require newspaper publication, and creditors will not be filing claims with the County Clerk’s office as with a standard estate. Creditors must file claims against the estate within two (2) years. They must file in Circuit or Magistrate Court.

The Small Estate Affidavit serves as the appraisement of the estate. There will be no accounting from the clerk’s office.

If an heir believes they have not been treated fairly, they must file a case in the Circuit Court or Magistrate Court.

Where can I find out more about my county’s probate process?

Where can I get an attorney?