Probate Law in the State of West Virginia

By Heather Frances J.D.

When a West Virginia resident dies, his property must pass to new owners according to the terms of West Virginia’s probate laws. These laws, found in Chapters 41 and 42 of the West Virginia Code, govern the creation of a will, who inherits from you if you don’t have a will, and how your estate will be administered after your death.

Probate

Probate is the court process that officially accepts your will (if you have one) after you die, appoints someone to administer your estate, and guides that person through the steps of gathering your assets, paying your final debts and distributing your property appropriately. West Virginia law allows some of your property – such as life insurance that names a beneficiary or real estate that was jointly-owned with rights of survivorship – to pass to beneficiaries without going through the probate process.

Requirements for a Will

Your estate can be probated without a will, but creating a valid will gives you the ability to name beneficiaries to inherit parts of your estate and a personal representative to administer your estate through the probate process. In West Virginia, anyone who is at least 18 years old and mentally competent can make a will. To be valid, the will must be in writing and signed by the testator, who is the person making the will. If the will is not completely in the handwriting of the testator – for example, if part of it is typewritten – the will must also be signed by two competent witnesses.

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Intestate Succession

If you die without a valid will, your estate will still require probate. However, you are said to have died “intestate,” and West Virginia’s laws on intestate succession will determine who inherits from your estate. For example, if your spouse survives you and you have no children from a previous relationship, your spouse will inherit your entire probate estate. If you were not married or your spouse does not survive you, your estate will pass to your descendants, such as your children or grandchildren. If you have no surviving spouse or surviving descendants, your estate will pass to your surviving parent(s), then to your aunts and uncles, if any.

Appointment of Personal Representative

One of the initial steps in West Virginia probate is the appointment of the estate’s personal representative – called an executor if there is a valid will or an administrator if there is not a valid will. If you appoint an executor in your will, that person will have no powers to act on behalf of your estate until the will has been admitted to probate by a West Virginia county court and the executor has taken an oath and filed a bond with the court. The bond may not be required if you specify in your will that your executor should not have to file a bond. If you die without a will, the court can grant administration authority to a person who applies to the court for that authority, usually your spouse or other heir.

Role of the Personal Representative

Your estate’s personal representative is responsible to gather your estate, pay any debts against your estate, and distribute it to the proper heirs or beneficiaries. As part of this process, the personal representative must search for creditors who may have claims against the estate and notify them of the probate proceedings. It may also be necessary for the personal representative to sell items in the estate to pay debts the deceased person owed. A personal representative must also give notice of the proceedings to the surviving spouse, any beneficiaries named in the will (if any) or heirs if there is not a will. West Virginia also requires the personal representative to provide an appraisal of the value of the estate and file the appropriate tax documents based on that appraisal. If you die without a will, your estate’s administrator will have to file an affidavit with the court that shows the names and addresses of your heirs. The personal representative has the duty to perform his responsibilities “well and truly” in accordance with West Virginia law or he may be held liable for his poor estate administration.

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