West Virginia Probate Laws: Wills, Heirs, and Deadlines

Probate in West Virginia runs through the county commission in the county where the deceased person lived, not through a separate probate court. Simple estates often close in six months to a year; complex ones can take up to five years. Many smaller estates skip the formal process entirely through a notarized affidavit. West Virginia probate laws set the deadlines, the order of debt payment, who inherits when there’s no will, and what a surviving spouse is entitled to claim regardless of what a will says.

Where Probate Happens and When It’s Required

Each of West Virginia’s 55 counties has a county commission that acts as the probate court, validating wills, appointing personal representatives, and overseeing administration.1West Virginia Legislature. West Virginia Code 44-1-4 – Appointment of Intestate Administrator; Affidavit of Heirs of Nonresident Intestate Decedent Without Appointment of Intestate Administrator You file in the county where the deceased lived. A fiduciary supervisor and a fiduciary commissioner handle the day-to-day work of reviewing filings and taking testimony, but every decision they make has to be confirmed by the county commission.2West Virginia Legislature. West Virginia Code 44-3A-2 – Nature of Office of Fiduciary Supervisor and Fiduciary Commissioner; Duties of County Commission With Respect to Orders and Findings of Such Supervisor or Commissioner Genuine disputes over a will’s validity or a personal representative’s conduct move up to the circuit court.

Probate is necessary when the deceased owned assets solely in their own name, with no beneficiary designation, joint owner, or transfer-on-death arrangement. Bank accounts, real estate, vehicles, and personal property without those features cannot legally change hands until the estate is opened. A will does not eliminate the need for probate; the will itself has to be admitted to probate before it has any legal effect. If there is no will, the estate still goes through probate under West Virginia’s intestacy rules.

The Small Estate Shortcut

West Virginia’s Small Estate Act lets many estates avoid full probate. To qualify, the estate must have personal property worth $50,000 or less and real estate worth $100,000 or less.3West Virginia Legislature. West Virginia Code 44-1A-1 – Definitions Property that already passes outside probate (like real estate held in joint tenancy with survivorship) doesn’t count toward those limits. One trap: if the will directs that real estate be sold rather than simply authorizing the executor to sell, the estate cannot use the small estate procedure.

The process is a notarized affidavit filed with the county clerk. When you can file depends on your role:

  • Named executor with a will: 30 days after death
  • Beneficiary who is not the executor, with a will: 60 days after death
  • Heir when there is no will: 60 days after death

The affidavit identifies the deceased, lists assets and values, and names the heirs or beneficiaries and their shares. For real estate, a property description is included and the affidavit is recorded in the county where the property sits, acting as a deed substitute. No final accounting or court approval is needed to close a small estate.

What Makes a Will Valid

A West Virginia will has to be in writing and signed by the testator. Unless it’s entirely in the testator’s own handwriting, two witnesses must be present at the same time, watch the testator sign or acknowledge the will, and then sign it themselves in the presence of the testator and each other.4West Virginia Legislature. West Virginia Code 41-1-3 – How Wills Are to Be Signed No specific attestation language is required.

Holographic wills are recognized. If the document is entirely in the testator’s handwriting, no witnesses are needed. A handwritten letter setting out final wishes can be legally enforceable even if no one else was in the room.

Anyone holding the will has 30 days after learning of the death to deliver it to the county clerk or the named executor. Failing to turn over a will without good reason is a misdemeanor punishable by a fine of up to $200, plus civil liability for any harm the delay causes beneficiaries.5West Virginia Legislature. West Virginia Code 41-5-1 – Custodian of Will to Deliver Same to Clerk of County Court or Executor; Liability for Neglect

The Personal Representative

The personal representative collects assets, pays debts, and distributes what remains. If the will names an executor, the county commission usually honors that choice unless the person is incapacitated, has a felony conviction, or has a serious conflict of interest. Without a will, the court follows a statutory order of preference: surviving spouse first, then adult children, then parents and other close relatives.1West Virginia Legislature. West Virginia Code 44-1-4 – Appointment of Intestate Administrator; Affidavit of Heirs of Nonresident Intestate Decedent Without Appointment of Intestate Administrator If no family member is available or willing, the court can appoint a creditor or unrelated third party.

After appointment, the personal representative takes an oath and, in most cases, posts a surety bond equal to the full value of the estate. The bond protects beneficiaries and creditors from mismanagement. It is not required when the personal representative is the sole heir and beneficiary, or when a nonresident executor’s will waives it. Courts can still insist on a bond when disputes exist or the estate is large.

Compensation

Fees are set as a commission on the net value of the personal estate (personal property minus debts, funeral costs, and administration expenses):6West Virginia Legislature. West Virginia Code 44-4 – Accounts and Settlements

  • First $10,000: 5%
  • Next $40,000: 4%
  • Next $50,000: 3%
  • Everything above $100,000: 2%

On a $200,000 net personal estate, that works out to $5,100. These are maximum rates. A will can set a different arrangement, and a personal representative can agree to less.

Deadlines and Timeline

West Virginia probate runs on a sequence of statutory deadlines. Missing them can expose the personal representative to personal liability or hold up distributions.

Straightforward estates with no disputes often close in six months to a year. Contested estates, estates with complex assets, or those involving minor beneficiaries can stretch toward the five-year outer limit.

Creditor Claims and the Order of Payment

The personal representative notifies known creditors by first-class mail and publishes notice in a local newspaper for two consecutive weeks.8West Virginia Legislature. West Virginia Code 44-1-14a – Notice of Administration of Estate; Time Limits for Filing of Objections; Liability of Personal Representative Creditors have 60 days from the first publication date to file claims. Missing the window forfeits the right to collect. The personal representative reviews each claim and can accept or reject it; disputes go to the fiduciary commissioner and, if unresolved, the county commission.

When the estate cannot pay every creditor in full, West Virginia law sets this order:10West Virginia Legislature. West Virginia Code 44-3A-26 – Order in Which Debts of Decedent Are to Be Paid

  • Administration costs (court fees, attorney fees, personal representative compensation)
  • Funeral expenses, unless fully covered by a prepaid contract
  • Federal debts and taxes
  • Unpaid child support
  • State debts and taxes
  • Last-illness medical and hospital expenses
  • All other claims

Within a single class, claims share pro-rata if funds run short. Unsecured credit card debt, personal loans, and similar obligations sit in the final class and get paid only after everything above them.

Who Inherits

When someone dies without a valid will, West Virginia’s intestacy statute controls. The surviving spouse’s share depends on whether descendants exist and whose children they are:11West Virginia Legislature. West Virginia Code 42-1-3 – Share of Spouse

  • No surviving descendants: the spouse inherits the entire estate.
  • All descendants are children of both the spouse and the deceased, and the spouse has no children from another relationship: the spouse inherits the entire estate.
  • All descendants are children of both, but the spouse also has children from a different relationship: the spouse receives three-fifths.
  • The deceased had children who are not descendants of the surviving spouse: the spouse receives one-half.

Whatever the spouse does not take is divided equally among the deceased’s children, with a deceased child’s share passing to that child’s own descendants. If no spouse or descendants survive, the estate flows to parents, then siblings, then more distant relatives. If no heir can be found, the estate goes to the state.

The distinction between three-fifths and one-half turns on whose children are involved. If every child is shared but the surviving spouse brought stepchildren into the marriage, the spouse still takes the larger share. The share drops to half only when the deceased had children who are not related to the surviving spouse.

The Spouse’s Elective Share

A surviving spouse who is unhappy with what a will provides, or even with the intestate share, can elect a different portion instead. West Virginia uses a sliding scale tied to the length of the marriage, applied to the “augmented estate” rather than just the probate estate.12West Virginia Legislature. West Virginia Code 42-3-1 – Right to Elective Share The augmented estate includes probate assets plus certain nonprobate transfers and the surviving spouse’s own assets, which keeps either spouse from defeating the other’s share through gifts or trusts.

Percentages range from 3% for a one-year marriage to 50% for 15 years or more. A few points on the scale:

  • Less than 1 year: supplemental amount only, no percentage share
  • 5 years: 15%
  • 10 years: 30%
  • 15 years or more: 50%

A will that leaves everything to children from a prior marriage does not necessarily control the outcome. A surviving spouse of 15 years or more can claim half the augmented estate regardless of the will.

Contesting a Will

A will contest has to be filed within six months of the will being admitted to probate. Minors, incapacitated individuals, and non-residents get an extended window of one year. Common grounds are undue influence, fraud, and lack of testamentary capacity.

Not every dispute is about the will itself. Heirs may fight over asset values, whether property should be sold or divided in kind, or whether the personal representative is doing the job competently. The county commission can appoint a special commissioner to investigate, order the sale of contested property, or remove a personal representative who has breached duties to the estate. When matters escalate, they move to circuit court. Contested probate is slow and expensive, and attorney fees come out of the estate.

Assets That Skip Probate

Several categories of property pass directly to a named beneficiary or co-owner without going through probate. Setting these designations up correctly during life is the most effective way to keep an estate simple.

  • Joint tenancy with right of survivorship: real estate, bank accounts, and other property held this way automatically pass to the surviving owner.
  • Beneficiary designations: life insurance, retirement accounts, and annuities pass to whoever is named on the account, regardless of what a will says.
  • Payable-on-death and transfer-on-death accounts: bank accounts and securities with POD or TOD designations transfer directly to the named person.
  • Trusts: assets held in a properly funded trust pass under the trust’s terms.

Transfer-on-Death Deeds

West Virginia has adopted the Uniform Real Property Transfer on Death Act, which lets a property owner sign a deed transferring real estate to a named beneficiary at death while keeping full ownership and control during life.13West Virginia Legislature. West Virginia Code Article 12 – Uniform Real Property Transfer on Death Act The deed has to be recorded in the county where the property sits before the owner dies. No notice to the beneficiary, no delivery, and no payment from the beneficiary are required. The owner can revoke or change it at any time, and recording it triggers no excise tax because no interest passes until death.

Estate and Inheritance Taxes

West Virginia imposes no state estate tax and no inheritance tax. The state estate tax applied only to deaths between July 1, 1985, and December 31, 2004, when it was linked to the federal credit for state death taxes. Anyone dying after 2004 owes nothing to the state on this front.14West Virginia Society of Certified Public Accountants. 2026 Guidebook to West Virginia Taxes – Chapter 8 Estate Taxes

The personal representative still has state income tax obligations. Any income the estate earns after the date of death (interest, rent, dividends) is reported on a West Virginia fiduciary income tax return, Form IT-141, due by the 15th day of the fourth month after the close of the estate’s tax year. An extension to file does not extend the deadline to pay.

At the federal level, estates worth more than $15 million per person in 2026 may owe federal estate tax. That threshold was raised under legislation signed in 2025 and does not include a sunset date. Most West Virginia estates fall well below it, but the federal return (Form 706) is due nine months after death when it applies.