Probate Shortcuts in West Virginia

The probate process can be long and drawn-out, costing your survivors time as well as money. Fortunately, West Virginia offers a probate shortcut for "small estates." If the property you leave behind at your death is below a certain amount, your loved ones can use a procedure called "administration of a small estate upon affidavit" to transfer your property more quickly and with less hassle.

When Can You Use Small Estate Administration in West Virginia?

You can use a small estate proceeding in West Virginia if:

• the total value of the probate assets (assets subject to probate), not including real estate, doesn't exceed $50,000
• the total value of probate real estate (real estate subject to probate) doesn't exceed $100,000
• 30 days have passed since the death (if the inheritor is also named as a personal representative or executor in the will), or 60 days have passed since the death (if the inheritor is not named as a personal representative or executor in the will, or if there is no will), and
• no application for appointment of personal representative has been granted or is pending in any jurisdiction.

(W. Va. Code § 44-1a-2.)

Note that even if you own more than $50,000 worth of assets (or $100,000 worth of real estate), your survivors may still be able to take advantage of the small estate procedure. That's because certain types of property aren't subject to probate, and therefore don't count. These types of property include:

• joint tenancy property
• property in a living trust
• payable-on-death bank accounts, and
• other kinds of property that don't go through probate.

So even relatively large estates might still qualify as a "small estate" for purposes of small estate administration.

Using a Small Estate Affidavit in West Virginia

To use West Virginia's small estate procedure, you'll first need to file an Affidavit of Small Estate (here's a sample). This affidavit includes:

• statements that the estate meets the requirements set out above
• information on whether the deceased person left behind a will or not
• the names and addresses of the beneficiaries under the will, or the heirs under West Virginia intestacy law if there was no will, and
• a description of the small assets and real estate owned, as well as and their fair market values.

After signing the document (and swearing to its truthfulness) and having it notarized, the inheritor turns it in to the county clerk. If there's a will, it will need to be attached, and often a certified copy of the death certificate is required as well. Once the affidavit is authorized, the county clerk files it in the same way as a will.

The inheritor can then present the authorized affidavit directly to the person or institution holding the property—for example, a bank where the deceased person had an account. The inheritor will usually also need to provide a certified copy of the death certificate. After that, the person or institution releases the asset.

For More Information

For more help handling an estate in general, see The Executor's Guide, by Mary Randolph (Nolo). For an introduction to how you can plan your estate to help your survivors, try Estate Planning Basics, by Denis Clifford (Nolo).

For more on West Virginia estate planning issues, see our section on West Virginia Estate Planning.