Probate is the legal process of settling a decedent\u2019s estate\nand distributing property to those entitled to receive it. This involves authenticating\na testator\u2019s will upon his or her death and transferring property to the named\nbeneficiaries, or, if the decedent dies without leaving a will, determining the\ndecedent\u2019s legal heirs. Probate ensures that, by complying with state law,\nclear and marketable title passes to devisees or heirs at law.<\/p>\n\n\n\n\n\n\n\n
Assets titled solely in the decedent\u2019s name are subject to\nprobate, while assets titled with a survivorship or beneficiary designation\ntransfer outside of probate by operation of law. Action is still typically\nrequired to legally change ownership of nonprobate assets. Consult an estate\nlawyer to discuss requirements for the specific situation. <\/p>\n\n\n\n
A typical probate in West Virginia consists of three phases:\nappointment, appraisement, and settlement. Before appointment of the fiduciary\n(the person who will settle the estate), first determine whether the decedent\nleft a will. <\/p>\n\n\n\n
The person seeking appointment, typically the executor named\nin the will, must present the original will for recording to the probate\ndepartment of the county clerk\u2019s office in the county where the decedent\nresided at the time of death, along with the death certificate and a list of\nthe bloodline heirs and their mailing addresses. If no executor is named in the\nwill, the person seeking appointment must have the consent of a majority of heirs,\nif seeking appointment within the first thirty days of the decedent\u2019s death\n(after thirty days have passed, no consent is required). To be appointed, the\nexecutor must take an oath and may be required to give bond (W. Va. Code 44-1-8).<\/p>\n\n\n\n
Alternately, when the decedent dies without a will\n(intestate), the person who qualifies as the fiduciary is called an\nadministrator. By law, preference of appointment as administrator is given to\nthe surviving spouse, if any, and next to any of the distributees (persons\nentitled to a share of the estate) who apply for administration (44-1-4). A\nperson seeking appointment as administrator must provide a list of heirs. The\nsame requirements as above for heirs\u2019 consent and giving bond apply.<\/p>\n\n\n\n
Regardless of the type of fiduciary (whether executor or\nadministrator), the court grants Letters of Administration. This document\nauthenticates the fiduciary\u2019s role, giving him full power and authority to act\nas representative.<\/p>\n\n\n\n
Within ninety days of appointment, the fiduciary completes\nand files inventories of the estate, as directed by the State Tax Commissioner.\nAn inventory of all the real estate and probate property owned by the decedent\nat the time of his death is recorded in the County Clerk\u2019s office in the county\nwhere the decedent resided at the time of death. An additional inventory of the\ndecedent\u2019s nonprobate property is filed, but not recorded, in the same office.<\/p>\n\n\n\n
The first inventory describes the assets of the estate that\nare subject to probate and their appraised value(s) (44-1-14(f)). The signed appraisement\nform is evidence of the value of the property listed within, confirms that the\nproperty is subject to administration, and acknowledges that the property was\nreceived by the fiduciary (44-1-14(g)). Submit the\nappraisement and two copies to the correct authorities. Estates with assets\ntotaling $200,000, excluding real estate, and with more than one beneficiary\nare referred to a fiduciary commissioner. Speak with the clerk for directions.<\/p>\n\n\n\n
Within thirty days of filing the appraisement, the county\nclerk\u2019s office will publish a notice to creditors in a newspaper of general\ncirculation. This notice alerts the public that an estate has been opened and\ngives the fiduciary\u2019s information. Creditors have sixty days from initial\npublication to file a claim against the estate. When the estate\u2019s assets are\ninsufficient to pay claims, the law specifies the priority in which claims are\nto be paid (44-3A-26).<\/p>\n\n\n\n
When the assets of the estate are insufficient to pay\nclaims, the fiduciary (executor or administrator) may initiate a suit in equity\nto subject real estate to sale (44-8-1). If the decedent\u2019s will devises real\nestate to be sold or when a sale is ordered following a suit, the fiduciary\nexecutes a deed to convey the property to the purchaser.<\/p>\n\n\n\n
A fiduciary deed follows the statutory form of a deed under W.\nVa. Code 36-3-5. Due to the nature of the fiduciary as a representative, a\nspecial warranty is typically appropriate. A covenant of special warranty means\nthat the grantor promises to warrant and defend the property for the grantee\nagainst claims or demands of the grantor and persons acting by, through, or\nunder him. This warranty is more limited than that of a general warranty deed\nbecause it does not extend prior to the time the grantor obtained title. In\nWest Virginia, covenants run with the land, meaning they are also binding on\nany successor in title.<\/p>\n\n\n\n
A fiduciary\u2019s deed contains information about the estate and\nmust be signed by the executor or administrator in the presence of a notary\npublic before recording in the County Clerk\u2019s office for a valid transfer. The\ninstrument should meet all requirements of form and content for documents\nrelating to real property in West Virginia.<\/p>\n\n\n\n
W. Va. Code 44-3A-29 establishes when the estate may be\ndistributed. When a decedent dies with a will, the law specifies who will\nreceive his property. West Virginia\u2019s laws of descent are codified at Chapter\n42-1. In general, the surviving spouse inherits a decedent\u2019s property. If the\ndecedent has no surviving spouse, his descendants (children) inherit the\nproperty. A grandchild inherits the share of a deceased parent, if applicable.\nIf the decedent has neither a surviving spouse nor descendants, his or her\nparents inherit the property. In the event there are no surviving parents, the\ndecedent\u2019s siblings inherit.<\/p>\n\n\n\n
At the end of the claims period, the fiduciary has two\noptions for settlement of the estate. In a short form settlement, the\nbeneficiaries complete a from stating that the fiduciary has handled the estate\ncorrectly and that they waive their rights to a final accounting. <\/p>\n\n\n\n
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.<\/p>\n\n\n\n