Wills and probate in West Virginia

Signing and delivering a will

A West Virginia will must be written and signed by the testator. Unless the will is wholly handwritten, two competent witnesses must be present together and subscribe in the testator's presence and in each other's presence.

A person who has custody of a will must deliver it within thirty days after learning of the testator's death.

Property passing without a will

A surviving spouse receives the entire estate in specified cases. The spouse receives three fifths when the decedent's descendants are shared with the spouse but the spouse has other descendants, and one half when any surviving descendant is not the spouse's descendant.

West Virginia intestacy passes property first to the decedent's descendants by representation, then to the parents. If no descendant or parent survives, descendants of the decedent's parents take by representation. When relatives in a grandparent line take, one half goes to the paternal side and one half to maternal relatives in the same manner.

Small estate procedures

West Virginia defines a small estate using limits of $50,000 for probate personal property and $100,000 for in-state real estate. Nonprobate real estate is excluded. For this determination, real estate's fair market value is presumed to be 167 percent of its assessed value.

A West Virginia domiciliary's small estate with no probate real property interest may be administered by affidavit without appointing a personal representative. An interested person may challenge the affidavit on good and proper grounds within thirty days after the clerk mails it. An objection may lead to revocation and full probate administration.

A person with an interest in West Virginia real estate belonging to a nonresident intestate decedent may execute and tender an affidavit for recording when no ancillary appointment is necessary.

Transfer on death deeds

A West Virginia transfer on death deed must be recorded before the transferor's death with the county commission clerk in the county where the property is located. The deed is exempt from the excise tax on transferring real estate.

When a transfer on death deed names one beneficiary, that beneficiary's interest depends on surviving the transferor and lapses if the beneficiary does not survive. A beneficiary takes the property subject to conveyances, encumbrances, mortgages, liens, and other interests existing at the transferor's death.

Common questions