Settling Small Estates (WV)
In West Virginia, small estates can bypass probate entirely, and debt-free estates can simplify probate via short form settlement. Regardless of estate size, probate is not required if an estate contains only assets exempt from probate.
Affidavit for Small Estate
If an estate qualifies as "small", you can use a simple court-approved Affidavit for Small Estate to obtain legal possession of estate assets, and then settle the estate on your own.
An affidavit is basically a sworn statement that what you are claiming is true. In this case, you can use an Affidavit for Small Estate stating that the decedent owned the property in question, that the decedent has passed away, and that you are the legal successor to the property (since you are handling the estate) and want to take possession of the asset (as part of the estate settlement process).
Requirements
In order to use the Affidavit for Small Estate process, the following conditions must be true:
- The estate's personal assets have a combined value <$50K, and any real property (i.e., real estate) is worth <$100K.
- If the person filing was nominated as an executor in the will, at least 30 days have passed since the death. If the person filing was not nominated as an executor in the will, at least 60 days have passed since the death, and no Affidavit of Small Estate has been filed by a person who was nominated as an executor in the will.
- No application for a personal representative is pending or has already been granted.
In determining estate value, you should ignore any unsecured debts (but do subtract things like liens and mortgages). Do not include any assets that would not normally go through probate, such as community property with right of survivorship, assets with named beneficiaries (e.g., 401Ks, life insurance policies), and other standard probate exclusions.
Process
To use the Affidavit for Small Estate process:
- Bring the death certificate and the will (if there is one) to the county court (see below) and ask for an affidavit form to file under the Small Estate Act (here is a sample Affidavit for Small Estate form for Wood County)
- Fill out the form, submit it to the court, and receive an authorized certificate in return
- No probate bond is necessary when using this process, and no creditor notification is required
- Within 6 months, obtain possession of estate assets by presenting the certified affidavit to current custodians
- Settle the estate in the normal way (pay debts, distribute remaining assets)
See WV Code § 44-1A-2 et seq for statute details.
Short Form Settlement
If the estate does not qualify for an Affidavit of Small Estate, in many WV counties you can still simplify probate via Short Form Settlement if there are no debts.
Requirements
In order to use a Short Form Settlement, the following conditions must be true:
- The county supports Short Form Settlement
- There are no unresolved estate debts
- Any lien for payment of estate taxes is released and the release is filed with the clerk
Process
Under this approach, you begin probate as normal, but finish early when it becomes clear that there are no debts:
- 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
- The court will publish a Notice to Creditors
- If any estate taxes are due, pay them and submit the tax lien release to the court
- At some point after receiving your Letters, obtain possession of estate assets by presenting your Letters to current asset custodians
- If at least 60 days pass with no creditor claims being received, a county that supports this process will allow you to submit a Short Form Settlement (sample from Kanawha County), attaching signed waivers from each person entitled to inherit from the estate
- Once the court approves your Short Form Settlement, distribute the assets as described in your form
See WV Code § 44-3A-4A for statute details.
Vehicles
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.
Estate Settlement Considerations
Before paying any debts or making any distributions, be sure to account for any Family Entitlements in WV, which typically have priority over everything except expenses of the last illness, funeral charges, and any estate administrations expenses.
Even if the estate does not go through probate, you may still be entitled to Executor Compensation in WV, and this compensation also has priority over most estate debts.
Estate debts have priority over most distributions in turn, so before distributing assets you should resolve any estate debts. If the estate makes any distributions beyond amounts set aside for family entitlements, unpaid creditors have the right to sue the recipients for repayment using those excess distributions. Consequently, even if the settlement process does not require you to publish a Notice to Creditors, you may want to follow WV probate rules for finding estate debts, since doing so may limit the time creditors have to pursue repayment.
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.
Court
In West Virginia, the local County handles wills and estate probate. If you are using EstateExec and you enter the decedent's county of legal residence on the Decedent tab, you will see a direct link to the appropriate website here.
Additional Information
If your estate doesn't qualify for a small estate approach, or you're simply interested in exploring standard probate, take a look at Probate in WV.
And since probate is just the court-supervised subset of winding up a person's affairs after death, you'll probably want to check out our Complete Guide to Estate Settlement in WV.
Finally, in case you're interested, details about handling small estates in other states can be found here: