In West Virginia, the executor, also referred to as the personal representative, is appointed by the probate court to settle the affairs of the decedent. Their duties and responsibilities include taking charge of and inventorying the estate, paying the debts the decedent left behind as well as expenses of administration, and distributing estate assets to the decedent’s beneficiaries and heirs. The work that the personal representative is required to do can be time-consuming and complicated. Fortunately, the law provides that personal representative are entitle to reasonable compensation for their work. The amount of the compensation can be based on what the will provides or on a statutory formula.
Will-Based Personal Compensation
A testator is free to include a term in their will regarding personal representative compensation. In some cases the will is vague and mentions “reasonable compensation,” while in other cases it is more specific and detailed about personal representative compensation. Note that if the personal representative is not happy with what the will provides, they can chose to reject that option and choose the statutory fee.
West Virginia law provides a formula for the amount an executor should receive in compensation. W. Va. Code § 44-4-12A. This amount is deemed “reasonable” and would be based on the value of the probate estate. Under the statutory framework, a personal representative would be entitled to:
- 5.0% for the first $100,000
- 4.0% for above $100,000 and not exceeding $400,000
- 3.0% for above $400,000 and not exceeding $800,000
- 2.0% for above $800,000
Keep in mind that the probate court judge as the discretion to deviate from the statutory amount. For example, if the personal representative petitions the court for a higher amount, the court will grant that if the personal representative shows proof that a higher fee is reasonable and warranted. Reasons to support a higher fee may include:
- Amount of work involved. If the estate required the personal representative to do more than what is generally required, then a higher fee may be warranted. For example, if there was a will contest or some other type of litigation that required the personal representative to spend more time and do more work than an estate would typically require, the court might determine that it is reasonable to pay a higher fee.
- Expertise of the personal representative. If the representative is experienced or brings a helpful skillset to the process that may justify a higher fee. The personal representative may have an even stronger case if their experience or skillset results in the estate not having to pay another professional for services.
Likewise, if the personal representative fails to fulfill their duties, the county commission has the discretion to approve a smaller fee or no fee at all. W. Va. Code § 44-4-12A(d)
In addition, based on the language in the decedent’s will, the county commission may deviate from the statutory commissions.
Duties and responsibilities of the personal representative
With respect to settling the estate of a decedent, after they are formally appointed by the court, the personal representative earns their fee by performing the following work.
Caring for the estate of the decedent. The personal representative stands in the shoes of the decedent and is responsible for taking care of the estates in the estate. First the personal representative must figure what assets are actually part of the probate estate. Such assets may include a wide variety of personal property, financial accounts such as bank accounts and investment accounts, and real estate.
Paying estate debt and expenses. If the decedent left behind unpaid bills, the personal representative is responsible for paying them. However, here is a process. The personal representative must notify creditors so that they will understand the process for filing a claim and the deadline. The personal representative must use estate assets to pay valid claims that are timely filed. They must also pay expenses related to administration.
Distributing assets. One of the final responsibilities of the personal representative before their commission will be considered, is to distribute assets that remain in the estate to the decedent’s beneficiaries or heirs.