Probate is the legal process of settling a decedent’s estate and distributing property to those entitled to receive it. This involves authenticating a testator’s will upon his or her death and transferring property to the named beneficiaries, or, if the decedent dies without leaving a will, determining the decedent’s legal heirs. Probate ensures that, by complying with state law, clear and marketable title passes to devisees or heirs at law.
Assets titled solely in the decedent’s name are subject to probate, while assets titled with a survivorship or beneficiary designation transfer outside of probate by operation of law. Action is still typically required to legally change ownership of nonprobate assets. Consult an estate lawyer to discuss requirements for the specific situation.
A typical probate in West Virginia consists of three phases: appointment, appraisement, and settlement. Before appointment of the fiduciary (the person who will settle the estate), first determine whether the decedent left a will.
The person seeking appointment, typically the executor named in the will, must present the original will for recording to the probate department of the county clerk’s office in the county where the decedent resided at the time of death, along with the death certificate and a list of the bloodline heirs and their mailing addresses. If no executor is named in the will, the person seeking appointment must have the consent of a majority of heirs, if seeking appointment within the first thirty days of the decedent’s death (after thirty days have passed, no consent is required). To be appointed, the executor must take an oath and may be required to give bond (W. Va. Code 44-1-8).
Alternately, when the decedent dies without a will (intestate), the person who qualifies as the fiduciary is called an administrator. By law, preference of appointment as administrator is given to the surviving spouse, if any, and next to any of the distributees (persons entitled to a share of the estate) who apply for administration (44-1-4). A person seeking appointment as administrator must provide a list of heirs. The same requirements as above for heirs’ consent and giving bond apply.
Regardless of the type of fiduciary (whether executor or administrator), the court grants Letters of Administration. This document authenticates the fiduciary’s role, giving him full power and authority to act as representative.
Within ninety days of appointment, the fiduciary completes and files inventories of the estate, as directed by the State Tax Commissioner. An inventory of all the real estate and probate property owned by the decedent at the time of his death is recorded in the County Clerk’s office in the county where the decedent resided at the time of death. An additional inventory of the decedent’s nonprobate property is filed, but not recorded, in the same office.
The first inventory describes the assets of the estate that are subject to probate and their appraised value(s) (44-1-14(f)). The signed appraisement form is evidence of the value of the property listed within, confirms that the property is subject to administration, and acknowledges that the property was received by the fiduciary (44-1-14(g)). Submit the appraisement and two copies to the correct authorities. Estates with assets totaling $200,000, excluding real estate, and with more than one beneficiary are referred to a fiduciary commissioner. Speak with the clerk for directions.
Within thirty days of filing the appraisement, the county clerk’s office will publish a notice to creditors in a newspaper of general circulation. This notice alerts the public that an estate has been opened and gives the fiduciary’s information. Creditors have sixty days from initial publication to file a claim against the estate. When the estate’s assets are insufficient to pay claims, the law specifies the priority in which claims are to be paid (44-3A-26).
When the assets of the estate are insufficient to pay claims, the fiduciary (executor or administrator) may initiate a suit in equity to subject real estate to sale (44-8-1). If the decedent’s will devises real estate to be sold or when a sale is ordered following a suit, the fiduciary executes a deed to convey the property to the purchaser.
A fiduciary deed follows the statutory form of a deed under W. Va. Code 36-3-5. Due to the nature of the fiduciary as a representative, a special warranty is typically appropriate. A covenant of special warranty means that the grantor promises to warrant and defend the property for the grantee against claims or demands of the grantor and persons acting by, through, or under him. This warranty is more limited than that of a general warranty deed because it does not extend prior to the time the grantor obtained title. In West Virginia, covenants run with the land, meaning they are also binding on any successor in title.
A fiduciary’s deed contains information about the estate and must be signed by the executor or administrator in the presence of a notary public before recording in the County Clerk’s office for a valid transfer. The instrument should meet all requirements of form and content for documents relating to real property in West Virginia.
W. Va. Code 44-3A-29 establishes when the estate may be distributed. When a decedent dies with a will, the law specifies who will receive his property. West Virginia’s laws of descent are codified at Chapter 42-1. In general, the surviving spouse inherits a decedent’s property. If the decedent has no surviving spouse, his descendants (children) inherit the property. A grandchild inherits the share of a deceased parent, if applicable. If the decedent has neither a surviving spouse nor descendants, his or her parents inherit the property. In the event there are no surviving parents, the decedent’s siblings inherit.
At the end of the claims period, the fiduciary has two options for settlement of the estate. In a short form settlement, the beneficiaries complete a from stating that the fiduciary has handled the estate correctly and that they waive their rights to a final accounting.
If there are outstanding claims (meaning the estate has insufficient assets to pay claims) or when the beneficiaries disagree on the distribution of remaining assets, long form settlement may be appropriate. In a long form settlement, the fiduciary files an accounting, and sends the form to all beneficiaries, who have ten days to file an objection.
This article is not an exhaustive view of the probate process in West Virginia and does not take the place of sound legal advice. With questions about probate or selling real property from an estate, contact a qualified attorney in West Virginia.