Small Estates In West Virginia: July 2021 Update

A West Virginia law in effect since July 1, 2021, simplifies the process for small estates in West Virginia by creating the West Virginia Small Estate Act which allows for administration of certain small estates by affidavit and without appointment of a personal representative.

The West Virginia Small Estate Act can be found at  §§ 44-1 A-1 through 44-1 A-5 of the West Virginia Code, and can be accessed here.

What Qualifies As a Small Estate In West Virginia?

To qualify as a small estate in West Virginia, the decedent must have owned $50,000 or less of probate assets such as financial accounts, vehicles, personal property, and life insurance payable to the estate.

In addition, an estate can still qualify as a small estate in West Virginia if the decedent owned $100,000 or less in real estate in West Virginia.  The real estate must have been owned solely by the decedent or otherwise be subject to probate.

What Do You Do If Decedent’s Estate Qualifies As a Small Estate In West Virginia?

If the estate qualifies as a small estate under the West Virginia law, the estate may be administered using an affidavit and without a personal representative.  The small assets of the decedent may be paid or delivered to the authorized successor upon completion of the process.

The West Virginia small estate affidavit must be made upon oath and under penalty of perjury concerning the small estate and set forth:

(1) The name and current address of the affiant;

(2) The name of the decedent, the date of death of the decedent, and the address and residence of the decedent at his or her death;

(3) Whether the decedent had any known will, with the original of the known will to be attached to the affidavit and tendered for recording in the county as long as the will is in due and proper form for probate as a will in this state, or whether the decedent died intestate with no known will;

(4) A listing of the names, current addresses, and relationship to the decedent of any person nominated as a personal representative under the known will, together with a listing of the names, current addresses, and relationship to the decedent of the beneficiaries under the known will entitled to the estate or assets of the decedent. If there is no known will of the decedent, a listing of the names, current addresses, and relationship to the decedent of all of the intestate heirs-at-law and distributees of the decedent determined under the laws of intestate descent and distribution of this state;

(5) That the decedent’s entire personal probate estate as of the date of the decedent’s death, wherever located, consists only of small assets and the aggregate fair market value of all of the small assets does not exceed $50,000, together with a description or itemization of the small assets with an estimate of value, if known or ascertainable;

(6) Whether the decedent died seized and possessed of any probate real estate or interests in probate real property situate in this state and if so, that the aggregate fair market value of all of the real estate or interests in real property situate in this state does not exceed $100,000, together with a description of the real estate, the county in which it is situate, its assessed value for tax purposes, and its fair market value at the decedent’s date of death;

(7) That if the successor is nominated as a personal representative or executor under the provisions of the will of the decedent, at least 30 days have elapsed since the decedent’s date of death and no application for the appointment of a personal representative for the decedent is pending or has been granted in any jurisdiction. If the successor is not nominated as a personal representative or executor under the provisions of the will of the decedent, at least 60 days have elapsed since the decedent’s date of death, no application for the appointment of a personal representative for the decedent is pending or has been granted in any jurisdiction, and no affidavit of small estate has been filed by a successor nominated as a personal representative or executor under the provisions of the will of the decedent; and

(8) That the affiant will faithfully administer the small assets of the decedent in accordance with the law and pay or deliver the small assets to the successor or successors so entitled, after paying any known or ascertainable creditors of the decedent.

A form for the West Virginia small estate affidavit can be found in West Virginia Code § 44-1A-2.

Who Can Administer a Small Estate Under West Virginia Law?

The person authorized to administer an estate that qualifies as a small estate under the West Virginia law depends on whether the decedent had a will.

If decedent died with a valid West Virginia will, the nominated personal representative can present the will at the courthouse 30 days after decedent’s death and begin the small estate administration process.

If decedent did not leave a will, then anyone who would inherit from the estate under West Virginia’s intestacy laws is eligible to administer the small estate.  The person must wait 60 days from decedent’s death.

How Is a Small Estate Administered?

The appointed representative collects the decedent’s funds.  After any estate debts are paid, distributions are made to the proper people.  If a distributee takes issue with the administration, they can file a lawsuit.

Can Creditors Make Claims Against a West Virginia Small Estate?

Yes.  Creditors have two years from the decedent’s date of death to file a claim against the estate or its heirs.

The advantages of a small estate are that the probate process can move relatively quickly and inexpensively, with little of the formality required of a standard estate administration in West Virginia.

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