In West Virginia, when someone passes away, their estate must be settled through a court-supervised process referred to as probate or estate administration. During the process, the decedent’s outstanding business is cared for such as paying their debt and assigning their property to relatives and others according to the terms of their will. A personal representative appointed by the probate court is responsible for completing the day-to-day tasks of probate. The provisions related to the duties and responsibilities of the personal representative are found in W. Va. Code § 44-1-1 et seq.
During the estate administration process, there are sometimes disputes that develop that lead to litigation. Whenever there is litigation during probate, the outcome of the process may be profoundly impacted. Some of the issues that can lead to litigation in West Virginia during probate include arguments of over validity of the will, disputes over the actions of the fiduciary, and disagreements over the spouse’s elective share as provided for in W.Va. Code § 42-3-1.
Will Contest in West Virginia
One of the primary purposes of probate is validating the will. If a decedent left a will, the administration process is initiated when the personal representative files the decedent’s will along with a petition for probate with the clerk of the Circuit Court (the probate court) in the county in which the decedent resided at the time of their death. If someone does not believe the will should be probated, they can file an objection challenging its validity. This is referred to as a will contest. Only those with standing have the legal right to object to a will. To have “standing” you must have a financial interest in the will. Generally, this would include those who are legally entitled to inherit under West Virginia’s laws of intestate succession and those who are named as beneficiaries of the current will or a prior will.
In addition to the objectant having legal standing, the objectant must also have legal grounds, including:
- Improper execution or technical flaws
- Lack of testamentary capacity
- Undue influence
If the court concludes that the will is not valid, it will not admit it probate. Instead, the court will probate a prior valid will, if any. Otherwise, the estate will be intestate, and West Virginia’s law of intestate succession will apply.
A fiduciary is a person who is entrusted to care for the interests of someone else. They are expected to act in good faith and honesty. With respect to an estate, fiduciaries may include the personal representative, trustees, guardians, attorneys, and accountants.
Disputes relating to a fiduciary may develop if an interested party believes that the fiduciary has handled their responsibilities negligently, dishonestly, or with interests other than the estate or beneficiaries in mind.
Common fiduciary litigation issues center on:
- Objection to the final accounting
- Removal of fiduciary due to malfeasance or ineligibility
- Contested guardianships
- Fee disputes
- Prudent investment issues and management of estate or trust property
Wrongdoing by a fiduciary can negatively impact the value of the estate. If this happens, the court may hold the fiduciary personally responsible and require them to reimburse the estate for losses suffered.
Spouse’s Elective Share
Under West Virginia law, instead of accepting what the decedent’s will provides, a surviving spouse has the right to instead claim up to 50% of the decedent’s augmented deferred marital property estate. W.Va. Code § 42-3-1. The augmented deferred marital property estate is based on the total amount of all deferred marital property in the marriage. The amount the surviving spouse is entitled to depends on the length of the marriage. If the personal representative and the surviving spouse disagree over the what the surviving spouse is entitled to, the probate court would have to settle the dispute.
Impact of Probate Disputes
Generally, probate disputes that result in litigation will cause a delay in the process and lengthen the time frame for when asset distribution can occur. Probate disputes may also impact the amount of assets in the estate available for distribution as expenses related to litigating the dispute may have to be paid out of the estate assets. Depending on the type of dispute, it can impact who is entitled to inherit, who serves as fiduciary, and how much each beneficiary or heir receives.