When a loved one dies, while coping with the loss family members must also deal with settling the decedent’s estate. In West Virginia, before a decedent’s assets can be transferred to others, the estate must be administered through a court process called “probate.” The process of probate administration starts with filing a petition and the will, if any, with the probate court. In West Virginia the Circuit Court serves as the probate court, and there is a Circuit Court in each county.
The first step in the probate process is to file a petition for probate with the clerk of the circuit court in the county where the decedent lived. The court will then appoint an executor (also referred to as personal representative or estate administrator) to manage the process. If the decedent had a will, the person named in the will as the executor is typically the person the court will appoint to serve as executor. W. Va. Code § 44-1-1. The executor may be required to post a bond. Once formally appointed, the executor duties and responsibilities include:
- Notifying creditors. Any creditors who wish to file a claim against the estate must do so within the 60-day claim window. The claim window begins when the county clerk publishes the Notice of Administration of the Estate.
- Inventorying the estate. The executor must identify the property that is part of the probate estate. This may include real estate, cars, bank accounts, and personal property that are owned by the decedent individually. Once the executor or administrator has completed the inventory, they must forward it to the court.
- Pay debt, taxes, and expenses. The executor must pay estate debt, taxes, and expenses from estate assets. Note that debt, taxes, and expenses are paid prior to asset distribution and only to the extent that there are assets in the estate.
- Asset distribution. The executor must distribute to beneficiaries any assets that remain in the estate.
Litigation During Probate
While we all want the probate process to move along in a smooth, orderly fashion, that does not always happen. In fact, very often disagreements occur during probate that lead to probate litigation. One common reason for probate litigation include disagreements over whether the will is valid and should be probated. Will contests can be based on allegations of duress, undue influence, lack of capacity, improper execution, or fraud. While some will contests are based on anger out of being disinherited, other will contests are based on a deep belief, supported by evidence, that something untoward occurred during the will-making process that puts the validity of the will into question. If the objection to the will is brought by someone with standing, such as a beneficiary of a prior will or an heir, then the court must hear the arguments regarding whether the will is valid.
Another reason for probate disputes is related to creditor claims. When a creditor files a claim against the estate, the executor is obligated to review it for validity and refuse to pay any claim it deems unsubstantiated. The creditor may initiate litigation to convince the court that their claim is valid and that the estate should pay it.
Sometimes disagreements develop between the executor and the beneficiaries. For example, the beneficiaries might question how the executor has managed the estate. Other probate litigation may be related to trusts or guardianships.
Lack of a Will
If your loved one did not leave a will, upon petition the court will appoint a personal representative since the decedent did not nominate an executor in a will. They will be required to follow West Virginia law and distribute estate assets to the decedent’s heirs. W. Va. Code § 44-1-3 et seq. According to the statute, an intestate decedent’s primary heirs are their surviving spouse and children. In the absence of either, the law states who is in line to receive the decedent’s property, starting with parents followed by siblings.
In the rare instance where there are no heirs, the decedent’s property would go to the state of West Virginia. W. Va. Code § 44-1-3c.
Short Form Settlement
Small estates can avoid the complicated, formal probate process and instead petition the court for permission to use the “short form settlement” option. To use this process, the value of the estate must be worth no more than $100,000, the personal representative must be the sole beneficiary, the surviving spouse must be the sole beneficiary, or all beneficiaries must be in agreement and there are sufficient assets to pay estate debts.
With this process, the executor must file an affidavit with the probate court stating:
- That the time for filing claims has expired
- That there are no known, unpaid claims
- How the property was allocated among the beneficiaries and heirs
In addition, the executor must attach a waiver signed by each beneficiary to the affidavit. W. Va. Code § 44-3A-4a.