Probate for Small WV EstatesShow Table of Contents
In West Virginia, "small" or "simple" estates can simplify probate via waiver of final settlement.
Requirements for Waiver
You may be able to use a simplified estate approach in West Virginia if there are no disputed creditor claims and either:
- All estate assets subject to probate (other than any real estate specifically bequeathed) are worth <$200,000
- Or, there is only a single beneficiary of the will and he or she is competent at law
See WV Code § 44-2-1.
In some counties, you will automatically get to use the simple approach if any of the following are true:
- All estate assets subject to probate (other than any real estate) are worth <$100,000
- Or, the personal representative is the sole beneficiary of the estate
- Or, a surviving spouse is the sole beneficiary of the estate
- Or, the estate is solvent and all beneficiaries agree in writing that no dispute is likely to arise
- Or, the estate is solvent and the county commission concludes that no dispute is likely to arise
See WV Code § 44-3A-5.
In calculating estate value for these purposes, you should value assets as of the date of death, and ignore any debts (other than secured debt such as liens and mortgages). Do not include assets that would not normally go through probate, such as community property with rights of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
If the estate qualifies as above, you can simplify the probate process as follows:
- Submit the will (if there is one) and apply in person at the county court to be appointed as personal representative, presenting a copy of the death certificate and an affidavit listing the names and addresses of the beneficiaries named in the will, and the heirs-at-law (people who would inherit if there were no will)
- Receive an official court document appointing you as personal representative (your "Letters")
- Submit an Estate Appraisement (Forms ET 6.01 and 6.02) to the court
- Submit to the court a Request for Waiver of Final Settlement (signed by all inheritors as per WV Code § 44-2-29), or a Final Accounting with an affidavit stating that all claims against the estate for administration expenses, taxes, and debts have been fully paid
- At some point after receiving your Letters, obtain possession of estate assets by presenting your Letters to current asset custodians
- Upon approval of your waiver request, settle the estate in the normal manner (pay all obligations, distribute assets)
Estate Settlement Considerations
Before paying making any distributions, be sure to first resolve all debts. Unpaid estate creditors have the right to sue heirs (or the personal representative!) for the value of any distributions that should have been used to satisfy their claims.
If estate solvency is uncertain, an executor should consider going through official probate for the increased creditor protection it offers. Alternately, such uncertainty can sometimes persuade creditors to forgive a portion of debts, since they will want to avoid legal expenses as well, and may prefer to get something rather than nothing.
See also Making Distributions.
If there is no will, and no administrator has been appointed, you can submit a DMV Legal Heir Affidavit to the DMV to transfer a vehicle registration.
See WV Code Chapter 44 for statute details.
See also General Probate.