Starting Probate in West Virginia
Probate is a legal process that transfers a person’s property and debts after their death. An estate includes all a person’s property, taxes, debts, and funeral expenses. Probate begins in the county where the person who died was residing at the time of their death.
Getting startedTo begin this process, you must obtain a certified copy of the death certificate and the Will to present to the County Clerk in the county where the deceased was living within 30 days of the death. If the deceased did not have a Will or you are unaware that there is an existing Will, you should just take the death certificate.
HeirsGenerally, If there is a will, an executor or administrator of the estate has already been appointed. However, if no executor has been appointed, one must be chosen and sworn in before the County Clerk.
If there is no will, an heir of the deceased person can apply at the county commissioner’s office to be the administrator of the estate.
A complete list of the deceased person’s heirs accompanied by their addresses and everything they are receiving as gifts under the persons will, should be created and filed with the County Clerk. This form allows the heirs to know that the probate process is beginning.
Probate PropertyThe executor of the estate needs to file an appraisement of the estate. This is a list of the deceased’s probate property and its value. The executor also must file a list of the nonprobative property of the deceased and its value.
Probate Property VS Non-Probate Property
Probate Property of the Deceased: Real estate owned by themselves, any personal property deeded solely owned by them, personal bank accounts, pets, personal effects.
Non-probate Property of the Deceased: Real estate where the ownership is shared, Payable on death accounts, property with life interest, life insurance policy, gifts that the deceased directed to go to a specific person.
AppraisalAfter the appraisal and nonprobative inventory, the county clerk will distribute a Notice of Administration of the Estate. This gives others 60 days to challenge the Notice alleging that the person owed them money. The administrator or executor pays any claims made against the deceased’s estate for any debts or taxes due, including funeral expenses.
If the executor does not have enough money to pay off the deceased’s taxes and debts, they must begin to sell off the deceased’s property. The probate process cannot go any further until all debts and taxes are fully paid.
Closing the estateOnce all debts and taxes are paid, it is time to close the estate. An executor can finish the probate process in one of two ways. The first option is to file a Final Settlement. This is a document that lists all of the deceased’s property, debts, taxes, any gifts outlined in the will, and a list of the heirs. This document will also include receipts from any costs made during the probate process. The second option to close the estate is to file a Waiver of Final Settlement. The wavier states that no taxes or debts remain and everyone who is owed a gift from the deceased’s property has been informed about what they are getting.
The executor chooses one of the options above and files this with the fiduciary commissioner. Once the Commissioner signs off on this document, no changes can be made to the probate process.
IntestacyOnce the estate is closed, the executor can begin to distribute the deceased’s remaining property to the people mentioned in the Will or in cases where there is no will, to the deceased’s heirs by the discretion of the Executor within the legal guidelines intestate distribution.
EIN and AccountsWhile not necessarily required, it is a good idea to obtain an EIN from the Internal Revenue Service in the name of the estate and then to open a bank account with that EIN also in the name of the estate. For example, In the matter of the estate of John Brown, Lewis Stout executor would be a good name for the estate account and EIN as it fully lays out what is happening and can prevent confusion with tax issues in the future.