West Virginia Petition for Probate

Introduction

Key Things to Know

1. 1

   The county commission of the county, acting through the clerk of the county commission, handles probate; it is not a court. There is no statewide petition or form, so you file the county's application supplied by the clerk. The form the clerk requires controls over any draft petition.

2. 2

   No one has authority over estate assets until the commission or clerk appoints and the representative qualifies by taking an oath and giving bond, unless bond is not required. A named executor must still qualify, and should not distribute, pay heirs or sell property before appointment or before the creditor period ends.

3. 3

   A person with custody of a will must deliver it to the clerk of the county commission, or to the named executor, within 30 days after the death is known (41-5-1). Neglect without reasonable cause is a misdemeanor with a fine up to $200 plus liability for damages. The clerk can advise on timing for offering a will.

4. 4

   The named executor serves if qualified. If there is no executor, or all refuse, fail to give bond or are dead, administration with the will annexed goes to the person who would have been entitled had there been no will (44-1-2). For an intestate estate, distributees who apply are preferred, the spouse first, and if none applies within 30 days of death a creditor or other fit person may be named (44-1-4).

5. 5

   A nonresident individual generally may not be appointed, but a nonresident named executor by a resident decedent may qualify and act (44-5-3). Nonresidents generally must give a bond with corporate surety, but a will can direct no bond or a set amount for a nonresident executor, subject to the commission or clerk requiring more.

6. 6

   Notice comes after appointment. The clerk publishes a notice once a week for two successive weeks, and the personal representative must then, within 60 days after first publication, mail or personally serve a copy on the spouse and beneficiaries or heirs (other than one who is the representative and sole beneficiary), any trustee of a trust the decedent created, and reasonably ascertainable creditors (44-1-14a). Claims must be filed within 60 days of first publication.

7. 7

   Not every estate needs probate. Assets that pass by beneficiary designation, joint ownership with survivorship or a trust usually pass outside probate, and West Virginia has a small estate affidavit route. See our small estate affidavit page for that route.

West Virginia Requirements for Petition for Probate

• County Commission or Clerk Handles Probate

  A will is offered for probate to the county commission of the county, or its clerk when the commission is in recess, not to a court (W. Va. Code 41-5-10, 44-1-4). Venue lies where the testator had a mansion house or known residence, otherwise the county of devised real estate, then the county of death or any county with property (41-5-4).

• County Application, No Statewide Form

  West Virginia has no statewide application or petition form, and the county clerk supplies the opening forms. A verified petition is used only for probate in solemn form (41-5-5). The form the clerk requires controls over any draft petition.

• Will Custodian Delivery Duty

  A person with custody of a will must, within 30 days after learning of the death, deliver it to the clerk of the county commission or to the named executor. Neglect without reasonable cause is a misdemeanor with a fine up to $200 plus liability for damages (41-5-1).

• Priority and Nonresident Rule

  The named executor serves if qualified, then the person who would have been entitled had there been no will (44-1-2). In an intestate estate distributees who apply are preferred, the spouse first, and a creditor or other fit person may be named if none applies within 30 days of death (44-1-4). A nonresident individual generally may not serve, with exceptions that include a nonresident named executor by a resident decedent, a nonresident ancillary administrator, and a nonresident administrator appointed under 44-1-4 (44-5-3).

• Notice After Appointment

  The clerk publishes a notice once a week for two successive weeks. The personal representative must, within 60 days after first publication, serve a copy by first-class mail or personal service on the surviving spouse, beneficiaries or heirs, any trustee and reasonably ascertainable creditors (44-1-14a). Ex parte probate itself requires no notice (41-5-10).

• Sixty-Day Claims and Objection Window

  Claims must be filed within 60 days of the date of first publication. Objections to the personal representative's qualifications or the venue or jurisdiction are barred unless filed within 60 days after first publication or 30 days after service of the notice, whichever is later (44-1-14a).

• Oath and Bond Required Unless Excused

  An executor does not have the powers of an executor until they qualify by taking an oath and giving bond, unless bond is not required (44-1-1, 44-1-8). The will may direct no bond, but the county commission can require one on application of an interested person after a hearing. Surety is not required where the executor is the sole beneficiary or the administrator the sole distributee.

• Nonresident Bond With Corporate Surety

  A nonresident who is permitted to serve must give a bond with corporate surety, generally not less than double the value of the personal assets and of any real property authorized to be sold (44-5-3(b)). A will can direct no bond or a set amount for a nonresident executor, but the commission or clerk may require greater.