Settling an Estate in West Virginia
Reviewed by DocDraft Legal Team · West Virginia · Last updated August 27, 2026
West Virginia has no probate court. Article VIII, Section 6 of the West Virginia Constitution provides that until the Legislature vests probate elsewhere, jurisdiction in matters of probate, the appointment and qualification of personal representatives, and the settlement of their accounts remains in the county commissions and their officers, and the Legislature has never moved it. The file is opened with the clerk of the county commission in the county where the decedent lived, and the fiduciary supervisor of that office runs the administration day to day, with contested or complex estates referred to a fiduciary commissioner by order of the commission. The other West Virginia rule worth knowing before anything else is that House Bill 2867, effective July 9, 2025, amended West Virginia Code 44-1A-2 so that an estate containing any probate real property, or any interest in probate real property, can no longer be handled on a small estate affidavit at all. Creditors then have 60 days from the date the notice is first published to file claims.
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Where are you in settling the estate?
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Is probate always required in West Virginia?
No. Property held with a surviving joint owner, accounts with a payable on death designation, life insurance and retirement benefits with a living named beneficiary, and assets titled in a trust all pass outside the estate. What remains in the decedent's sole name is administered through the county commission, on a small estate affidavit or by a qualified personal representative.
Which court handles probate in West Virginia?
None does. Article VIII, Section 6 of the West Virginia Constitution leaves probate jurisdiction with the county commissions and their officers unless the Legislature moves it, and it has not. The paperwork is filed with the clerk of the county commission where the decedent lived, and the fiduciary supervisor of that office administers the estate.
What is the small estate limit in West Virginia?
West Virginia Code 44-1A-1 caps a small estate at $50,000 of probate personal property, and defines a small asset to exclude real estate outright. Since House Bill 2867 took effect on July 9, 2025, Code 44-1A-2 bars the affidavit route for any decedent who owned probate real property or an interest in it.
How long does probate take in West Virginia?
A cooperative estate often closes within six to twelve months. The appraisement is due to the county clerk within 90 days of qualification, the clerk then publishes the notice of administration, and creditors get 60 days from first publication. A small estate affidavit can be recorded far sooner, after a 30 or 60 day wait measured from death.
Probate handled by the county commission, and a small estate route that just lost real property
West Virginia is one of a small number of states where estate administration is not a judicial proceeding in the ordinary sense. Article VIII, Section 6 of the West Virginia Constitution allowed the Legislature to vest all matters of probate exclusively in the circuit courts, but provides that until it does so jurisdiction remains in the county commissions or the officers of those commissions, and the Legislature never made the transfer. The practical consequence is that a family opens the estate at the county clerk's counter rather than at a courthouse filing window. Two county officers do most of the work. The fiduciary supervisor, an officer of the clerk of the county commission, takes the appraisement, publishes and processes settlements, and can approve a short form settlement. A fiduciary commissioner is a separate officer to whom the county commission refers an estate by order when the estate is large enough or when someone objects, and West Virginia Code 44-2-1 caps that commissioner's fee at $300 plus expenses unless the personal representative agrees or the commission approves a schedule. The small estate route sits in the West Virginia Small Estate Act at Code 44-1A-1 and 44-1A-2. Code 44-1A-1 defines a small asset as probate personal property worth no more than $50,000 and says in terms that a small asset does not include real estate or an interest in real property. House Bill 2867, effective July 9, 2025, went further and amended Code 44-1A-2 so that the affidavit is available only to a decedent who died without owning any probate real property or any interest in probate real property, which means a homeowner's estate now goes to full administration no matter how modest the bank balance. Whichever track applies, Code 44-1-14a gives creditors 60 days from the date of first publication to file, and West Virginia measures the spouse's entitlement by an elective share of the augmented estate under Code 42-3-1 that climbs with the length of the marriage to 50 percent at 15 years. West Virginia is not a community property state.
Relevant Laws
West Virginia Code 44-1A-1 and 44-1A-2 (West Virginia Small Estate Act)
Code 44-1A-1 defines a small asset as probate personal property worth no more than $50,000 and states that a small asset does not include real estate or an interest in real property. Code 44-1A-2, as amended by House Bill 2867 effective July 9, 2025, allows administration on affidavit without appointment only for a decedent who died without owning any probate real property or interest in it. The affidavit is tendered to the clerk of the county commission or the fiduciary supervisor, and no bond, security, or oath is required.
West Virginia Code 44-1-14a (Notice of administration; time limits)
Requires the clerk of the county commission to publish the notice of administration as a Class II legal advertisement, once a week for two successive weeks, within 30 days of the filing of the appraisement or within 120 days of qualification if none is filed. The notice must state that claims against the estate are to be filed within 60 days of the date of first publication under Article 2 or Article 3A. Publication is equivalent to personal service on creditors, distributees, and legatees, and the representative must separately serve creditors it can reasonably identify.
West Virginia Code 44-2-1 (Reference of decedents' estates)
Governs whether an estate is referred by order of the county commission to a fiduciary commissioner for proof of debts and claims and determination of shares. An appraisement of $200,000 or less, exclusive of real estate specifically devised and nonprobate assets, or a single competent beneficiary, lets the clerk record the appraisement without a reference. A fiduciary commissioner may not charge the estate more than $300 plus expenses absent the representative's approval or a fee schedule approved by the county commission.
West Virginia Code 42-1-3 (Intestate share of the surviving spouse)
Where there is no will, the surviving spouse takes the entire intestate estate if no descendant survives or if all surviving descendants are also the spouse's and the spouse has no other descendants, three fifths where all of the decedent's descendants are the spouse's but the spouse has other descendants, and one half where any of the decedent's descendants are not descendants of the spouse.
Regional Variances
West Virginia administration tracks
Probate personal property $50,000 or less and no probate real property
Small estate affidavit under West Virginia Code 44-1A-2, tendered to the clerk of the county commission or the fiduciary supervisor, who records and indexes it with any original will. No personal representative is appointed and Code 44-1A-2(d) requires no bond, security, or oath. A successor nominated as executor under the will waits 30 days from the date of death; any other successor waits 60 days.
Any probate real property, at any value
Full administration before the county commission. House Bill 2867, effective July 9, 2025, amended Code 44-1A-2 to limit the affidavit to a decedent who died without owning any probate real property or any interest in probate real property. Code 44-1A-1 also keeps an estate outside the small estate definition where the will directs real estate to be sold, as opposed to merely giving a power to sell.
Appraisement of $200,000 or less, or one competent beneficiary
Full administration, but under Code 44-2-1 the clerk records the appraisement and no reference to a fiduciary commissioner is made, measuring that figure exclusive of real estate specifically devised and of nonprobate assets. The representative then files a waiver of final settlement under Code 44-2-29 or a report of receipts, disbursements, and distribution, which the clerk holds 10 days for objections.
Larger estates, or any estate where a claim or objection is filed
The county commission refers the estate by order to a fiduciary commissioner for proof and determination of debts and claims, priority, and shares. The representative has 20 days after a claim is filed to approve or reject it before reference, and if all claims are approved as filed no reference may be made. The commissioner's fee is capped at $300 plus expenses absent approval.
West Virginia deadlines, notice, and bond
Creditor claims in an Article 2 county
60 days from the date of first publication. Under Code 44-1-14a the clerk of the county commission publishes the notice of administration as a Class II legal advertisement once a week for two successive weeks, and that publication is equivalent to personal service on creditors, distributees, and legatees.
Creditor claims in an Article 3A county
Also 60 days from first publication, but the notice comes from a different officer. Article 3A is an optional procedure a county may adopt, and under Code 44-3A-4 the fiduciary supervisor publishes a notice of filing of estate accounts at least monthly as a Class II legal advertisement. Claims are filed with the fiduciary or with the fiduciary supervisor within 60 days of first publication, and the supervisor accepts none after that.
Appraisement
Due within 90 days of the date of qualification of the personal representative under Code 44-1-14, on the appraisement form prescribed by the Tax Commissioner and returned to the clerk of the county commission or the fiduciary supervisor, together with the nonprobate inventory form. A representative who refuses without reasonable cause commits a misdemeanor punishable by a fine of $25 to $500.
Bond
Under Code 44-1-8, where the will directs that the executor give no bond, none is required unless the county commission orders it after a hearing on an interested person's application. No surety is required where the executor is the sole beneficiary or the administrator the sole distributee, subject to the same exception, but the representative stays liable on personal recognizance for default or misadministration.
Closing the estate
In an Article 2 county a waiver of final settlement under Code 44-2-29 requires that more than 90 days have passed since the filing of any notice required by that article, that any estate tax lien has been released, and that the representative swear the claim period has expired with no known unpaid claims. In an Article 3A county a short form settlement under Code 44-3A-4a requires more than 60 days since the Article 3A notice.
Suggested Compliance Checklist
Identify the county commission that holds the file
Week 1 days after startingWest Virginia has no probate court, so confirm the county where the decedent was a resident and contact the clerk of the county commission and its fiduciary supervisor there. Ask the office whether the county uses the Article 2 procedure or has adopted the optional Article 3A procedure, because that determines who publishes the creditor notice and how the estate is settled.
Test the estate against the $50,000 cap and the real property bar
Weeks 1-3 days after startingTotal the probate personal property against the $50,000 ceiling in West Virginia Code 44-1A-1, then confirm the decedent owned no probate real property and no interest in probate real property, which House Bill 2867 made a bar to the affidavit as of July 9, 2025. If it qualifies, prepare the sworn affidavit for the clerk of the county commission or the fiduciary supervisor.
Diary 60 days from the date of first publication
Immediately after first publication days after startingCode 44-1-14a sets the creditor deadline at 60 days from the date the notice is first published, in both the Article 2 and the Article 3A track. Get the exact first publication date from the clerk or the fiduciary supervisor rather than estimating it, and note that the representative must also serve identified creditors, the spouse, and the beneficiaries within that same 60 days.
File the appraisement within 90 days of qualification
Within 90 days of qualification days after startingComplete the appraisement form prescribed by the Tax Commissioner and the notarized nonprobate inventory form and return both to the clerk of the county commission or the fiduciary supervisor within 90 days of qualification under Code 44-1-14. Identify every parcel of real estate with particularity and state the source of title in the decedent and the location for property tax purposes.
Hold distributions until the claim period closes, then settle
After the 60 day claim period days after startingCode 44-3A-19 provides that paying a creditor or a beneficiary before the claim period expires does not abrogate the representative's personal liability under Code 44-3A-26, 44-3A-27, and 44-3A-28. Once the window closes, pay allowed claims, confirm any real property has been transferred on the assessor's books, and file the settlement or waiver for confirmation by the county commission.
| Task | Description | Document | Days after starting |
|---|---|---|---|
| Identify the county commission that holds the file | West Virginia has no probate court, so confirm the county where the decedent was a resident and contact the clerk of the county commission and its fiduciary supervisor there. Ask the office whether the county uses the Article 2 procedure or has adopted the optional Article 3A procedure, because that determines who publishes the creditor notice and how the estate is settled. | - | Week 1 |
| Test the estate against the $50,000 cap and the real property bar | Total the probate personal property against the $50,000 ceiling in West Virginia Code 44-1A-1, then confirm the decedent owned no probate real property and no interest in probate real property, which House Bill 2867 made a bar to the affidavit as of July 9, 2025. If it qualifies, prepare the sworn affidavit for the clerk of the county commission or the fiduciary supervisor. | small-estate-affidavit | Weeks 1-3 |
| Diary 60 days from the date of first publication | Code 44-1-14a sets the creditor deadline at 60 days from the date the notice is first published, in both the Article 2 and the Article 3A track. Get the exact first publication date from the clerk or the fiduciary supervisor rather than estimating it, and note that the representative must also serve identified creditors, the spouse, and the beneficiaries within that same 60 days. | - | Immediately after first publication |
| File the appraisement within 90 days of qualification | Complete the appraisement form prescribed by the Tax Commissioner and the notarized nonprobate inventory form and return both to the clerk of the county commission or the fiduciary supervisor within 90 days of qualification under Code 44-1-14. Identify every parcel of real estate with particularity and state the source of title in the decedent and the location for property tax purposes. | asset-inventory | Within 90 days of qualification |
| Hold distributions until the claim period closes, then settle | Code 44-3A-19 provides that paying a creditor or a beneficiary before the claim period expires does not abrogate the representative's personal liability under Code 44-3A-26, 44-3A-27, and 44-3A-28. Once the window closes, pay allowed claims, confirm any real property has been transferred on the assessor's books, and file the settlement or waiver for confirmation by the county commission. | - | After the 60 day claim period |
Frequently Asked Questions
The fiduciary supervisor is an officer of the clerk of the county commission and is the person a personal representative actually deals with. The supervisor receives and inspects the appraisement, may receive and record a small estate affidavit, examines short form settlements under Code 44-3A-4a, and in counties using the optional Article 3A procedure publishes the notice of claims and conducts the long form settlement, reporting findings and recommendations to the county commission.
Not automatically. Under Code 44-2-1, if the appraisement shows $200,000 or less exclusive of specifically devised real estate and nonprobate assets, or there is a single competent beneficiary, the clerk simply records the appraisement and no reference is made. A reference follows if an interested party requests it or an unpaid creditor files a claim, and the representative has 20 days after a claim is filed to approve or reject it before any reference.
Yes, and the statute says so directly. Code 44-3A-19 provides that a claim paid by the personal representative to any creditor or beneficiary before the period for filing claims expires does not abrogate the representative's liability under Code 44-3A-26, 44-3A-27, and 44-3A-28. Separately, Code 44-1-8 provides that even where no surety is required, the executor or administrator remains liable on personal recognizance for default or misadministration.
West Virginia is not a community property state. Code 42-3-1 gives the surviving spouse an elective share of the augmented estate on a sliding scale set by the length of the marriage, from 3 percent at one year up to 50 percent at 15 years or more, with a supplemental amount of at least $25,000. Intestate, Code 42-1-3 gives the spouse the whole estate, three fifths, or one half depending on whose descendants survive.
Real property goes through full administration. The appraisement under Code 44-1-14 must list all probate and nonprobate real estate, identify each parcel with particularity, and state the source of title in the decedent and the location for property tax purposes. At settlement the fiduciary supervisor must find that West Virginia real property was transferred on the assessor's books or that the assessor was notified so the transfer can be noted.
Other West Virginia guides
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