Settle a small estate in West Virginia without probate
In West Virginia this is called: Affidavit for Small Estate (West Virginia Small Estate Act); certificate and authorization of small estate. If a West Virginia resident owned no probate real estate in West Virginia and their personal probate property is worth $50,000 or less, a successor files a sworn affidavit with the clerk of the county commission.
Up to $50,000, 60 days after the death, filed with a court.
Checked against official sources: October 30, 2026.
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Free tools
Small estate checker
Add up the estate and compare it with the West Virginia limit for the date of death.
Letter to a bank
Present your signed affidavit to a bank or other holder in West Virginia.
Balance request letter
Ask a bank or holder for the balance on the date of death.
What-to-gather checklist
Papers, steps, forms and fees for West Virginia, by procedure.
Car, bank, house in West Virginia
Car or other vehicle
If the title was joint with 'OR', the surviving owner signs the title alone; if joint with 'AND', the survivor signs and an executor, administrator or legal heir signs for the person who died.
Bank accounts
Joint accounts with a surviving owner and payable-on-death accounts are nonprobate and go to the survivor or beneficiary. For an account in the person's name alone, the authorized successor presents the county clerk's certificate and authorization of small estate; the bank must pay and is released from liability.
House or land
An owner can transfer real estate to beneficiaries or contingent beneficiaries effective at death with a transfer on death deed. It must have the elements of a recordable deed, state that the transfer happens at the owner's death, and be recorded before the owner's death with the clerk of the county commission where the property is.
Related pages
- Small estate affidavit in West Virginia
- Car title after a death in West Virginia
- Bank accounts after a death in West Virginia
- House without probate in West Virginia
- Small estate checker for West Virginia
- Letter to a bank in West Virginia
- Balance request letter for West Virginia
- What-to-gather checklist for West Virginia
- All about small estates in West Virginia
Administration of a small estate upon affidavit and without appointment (Affidavit for Small Estate)
A successor signs a sworn affidavit listing the person's small assets, heirs or will beneficiaries, and files it with the county clerk. The clerk issues a certificate that lets that successor (the 'authorized successor') collect the assets, pay funeral costs and creditors, and pass the rest to the people entitled to it.
- Limit
Up to $50,000 Counted at full value, without subtracting debts.
The person's entire personal probate estate must consist only of small assets with a total fair market value of $50,000 or less on the date of death, and the person must not have owned probate real estate in West Virginia.
- What counts
The fair market value on the date of death of all of the person's personal probate property, wherever located. Nonprobate assets (joint, payable-on-death, beneficiary and trust property) are not counted. The person must not have owned any probate real estate or interest in probate real estate in West Virginia.
- Waiting period
At least 60 days must have passed since the death. If you are the executor or personal representative named in the will, the wait is 30 days. In both cases no application to appoint a personal representative can be pending or granted anywhere.
- Who can use it
Any successor: a person (not a creditor) named as executor or personal representative in the will, or entitled to part of the assets under the will or West Virginia inheritance law. An executor named in the will can file after 30 days; other successors after 60 days and only if the named executor has not already filed. One successor signs; the others are listed and the clerk mails each of them a copy.
- Court or where to file
Clerk of the county commission (or its fiduciary supervisor) in the county that would handle the person's probate, usually the county where the person lived. Recorded, not a court case.
- Notary
The affidavit is sworn under oath and penalty of perjury; the statutory form has a notary public's jurat.
- Papers to attach
- Certified copy of the death certificate
- The original will, if there is one (it is recorded with the affidavit)
- Names, addresses and relationships of the named executor and all will beneficiaries, or of all heirs if there is no will
- List of each small asset with an estimated fair market value
- Steps
- Wait 60 days after the death (30 days if you are the executor named in the will).
- Confirm the person owned no probate real estate in West Virginia and that the personal probate assets total $50,000 or less.
- Fill in the Affidavit for Small Estate and sign it before a notary.
- File it, with the death certificate and any original will, with the clerk of the county commission and pay the recording fees.
- The clerk records it, mails a copy to the people listed, and issues the certificate and authorization of small estate.
- Present the certificate to each bank or holder, pay funeral costs and known creditors, then pay or deliver the rest to the people entitled. The certificate is good for six months (an extension of up to six more months can be requested).
- Fee
The clerk charges the same recording fees as for recording wills and affidavits of heirs in a regular probate; ask the county clerk. No bond is required.
- Debts and responsibility
The authorized successor has a fiduciary duty to safeguard the assets and promptly pay or deliver them to the people entitled. For three years after the certificate is issued, the authorized successor is liable to the successors (and any personal representative appointed later) for any breach of that duty. Creditors keep their claims against the estate and have the same rights against distributees and legatees as in a regular estate. Any interested person may object within 30 days after the clerk mails the affidavit, and the certificate can be revoked.
- What the bank or holder must do
Anyone holding a small asset must pay or deliver it to the authorized successor on presentation of the clerk's certificate and authorization. A holder that pays is released as if it dealt with a personal representative and need not check the truth of the affidavit; transfer agents must re-register securities. If a holder refuses, the asset can be recovered with damages in magistrate court or circuit court.
Law: W. Va. Code secs. 44-1A-1 to 44-1A-5
Source: Official page
What counts toward the limit in West Virginia
Add up the fair market value on the date of death of all the person's personal probate assets (things in their name alone), wherever located. Debts are not subtracted. Leave out nonprobate assets. If the person owned any probate real estate in West Virginia, the affidavit cannot be used.
Law: W. Va. Code secs. 44-1A-1, 44-1A-2
In this state the total is counted at full value, without subtracting debts.
| Kind of property | How it is treated | Details |
|---|---|---|
Bank accounts in the person's name alone | Counts | Bank, savings and credit union accounts and certificates of deposit in the person's name alone count. Law: W. Va. Code 44-1A-1(b)(4) |
Joint or payable-on-death (POD) bank accounts | Left out | Nonprobate assets that would not be administered in the probate estate, such as joint accounts with a survivor and payable-on-death accounts, are not small assets and are not counted. Law: W. Va. Code 44-1A-1(b)(4) |
Cars and other vehicles | Counts | A motor vehicle in the person's name alone is a small asset and counts at fair market value. Separately, if there is no will and no administrator, heirs can retitle a vehicle with the DMV's Legal Heir Affidavit. Law: W. Va. Code 44-1A-1(b)(4); WV DMV form DMV-185-TR |
Boats and mobile or manufactured homes | Counts | A boat or other tangible personal property in the person's name alone counts. Law: W. Va. Code 44-1A-1(b)(4) |
Real estate in West Virginia | Has its own procedure | If the person owned any probate real estate (or an interest in it) in West Virginia, the small estate affidavit cannot be used; a regular probate is needed. Real estate held in a nonprobate form (such as joint with survivorship or a recorded transfer on death deed) does not block it. Law: W. Va. Code 44-1A-2(a), (e) item 6 |
Main home (primary residence) | Has its own procedure | A home in West Virginia in the person's name alone means the affidavit cannot be used. A home held jointly with survivorship or with a transfer on death deed passes outside probate. Law: W. Va. Code 44-1A-2(a); W. Va. Code 36-12-5 |
Real estate in another state | Left out | Small assets do not include real estate, and only West Virginia probate real estate blocks the affidavit, so real estate in another state is not counted. Law: W. Va. Code 44-1A-1(b)(4), 44-1A-2(a) |
Unpaid wages owed to the person | Counts | Money owed to the person, such as unpaid wages or a refund, is a small asset and counts. Law: W. Va. Code 44-1A-1(b)(4) |
Military pay owed to the person | Not clear | Ask the county clerk how to list military pay owed to the person. Law: W. Va. Code 44-1A-1(b)(4) |
Life insurance or retirement money paid to a named person | Left out | Life insurance and retirement benefits paid to a named beneficiary are nonprobate assets and are not counted. Law: W. Va. Code 44-1A-1(b)(4) |
Life insurance or retirement money paid to the estate | Counts | Life insurance proceeds payable to the estate are listed in the law as a small asset and count. Law: W. Va. Code 44-1A-1(b)(4) |
Property in a living trust | Left out | Property held in a trust is not part of the probate estate and is not counted. Law: W. Va. Code 44-1A-1(b)(4) |
Property owned jointly with right of survivorship | Left out | Property held jointly with a right of survivorship passes outside probate and is not counted. Law: W. Va. Code 44-1A-1(b)(4) |
Property going to a surviving spouse | Counts | Probate assets count even if they go to the spouse; West Virginia has no separate higher small estate limit for a spouse. Law: W. Va. Code 44-1A-1(b)(5) |
Stocks, bonds and brokerage accounts | Counts | Stocks, bonds, mutual funds and brokerage accounts in the person's name alone count. Law: W. Va. Code 44-1A-1(b)(4) |
Furniture, jewelry and other belongings | Counts | Furniture, jewelry and other tangible personal property count at fair market value. Law: W. Va. Code 44-1A-1(b)(4) |
Source: Official page
Car or vehicle title after a death in West Virginia
If the title was joint with 'OR', the surviving owner signs the title alone; if joint with 'AND', the survivor signs and an executor, administrator or legal heir signs for the person who died. If the person owned the vehicle alone and left no will and no administrator was appointed, the legal heirs complete the Legal Heir Affidavit, signed before a notary, with a copy of the death certificate; any other heirs sign to give up their rights to the vehicle. If there is a will, a certified copy of the executor's or administrator's letters of appointment is needed; the DMV does not accept a copy of a will. License plates can be transferred to legal heirs; the new owner needs insurance in their name to register.
Law: form DMV-185-TR; W. Va. Code 17A-3-4
Source: form DMV-185-TR
- Agency
- West Virginia Division of Motor Vehicles (DMV), Department of Transportation
- Fee
$15 title fee, plus registration or transfer fees. Transfers between spouses or between parent and child titled in West Virginia do not need a gift affidavit for the sales tax exemption.
Source: Official page
Bank accounts after a death in West Virginia
Joint accounts with a surviving owner and payable-on-death accounts are nonprobate and go to the survivor or beneficiary. For an account in the person's name alone, the authorized successor presents the county clerk's certificate and authorization of small estate; the bank must pay and is released from liability. Otherwise a personal representative is appointed through regular probate.
Law: W. Va. Code secs. 44-1A-1(b)(4), 44-1A-3, 44-1A-4
Source: Official page
Transfer-on-death (TOD) and payable-on-death (POD) in West Virginia
- Real estate (TOD deed)
Yes · Transfer on death deed (West Virginia Uniform Real Property Transfer on Death Act)
An owner can transfer real estate to beneficiaries or contingent beneficiaries effective at death with a transfer on death deed. It must have the elements of a recordable deed, state that the transfer happens at the owner's death, and be recorded before the owner's death with the clerk of the county commission where the property is. It is exempt from the real estate transfer excise tax when recorded and stays revocable until death.
Law: W. Va. Code secs. 36-12-1 et seq. (36-12-5, 36-12-9)
Source: Official page
Surviving spouse in West Virginia
West Virginia has no separate small estate procedure or higher limit for a surviving spouse. The small estate law does not limit a surviving spouse's right to take an elective share. Vehicles titled jointly with 'OR' pass to the surviving owner by signing the title.
Law: W. Va. Code 44-1A-5(c)
Debts of the person in West Virginia
The authorized successor may use the small assets to pay the costs of getting the certificate, funeral expenses and known creditors, and must pay known or ascertainable creditors before distributing to the successors. The small estate affidavit does not release creditors' claims. If the small assets are not enough, a successor or creditor may, within six months after the certificate is issued, ask the circuit court to use real estate to pay debts.
Medicaid estate recovery in West Virginia
BMS recovers from the estates of members who received nursing facility, home and community-based and related hospital and prescription drug services at age 55 or older, or who were found to be permanently institutionalized. Recovery is at least from property passing to heirs under state probate law. No recovery or lien is made while the home is the lawful residence of the spouse, a child under 21, a blind or permanently and totally disabled child, or a sibling with an equity interest who lived there at least one year before admission. Undue hardship waivers (for example for an adult child who lived in and provided care in the home for two years, or heirs in a family business) must be requested within 45 days of the lien or proof of claim.
Law: W. Va. Code sec. 9-5-11c
- Agency
- West Virginia Department of Human Services, Bureau for Medical Services (BMS), Estate Recovery
- Official page
- Official page
Who inherits with no will in West Virginia
If there is no will: the surviving spouse gets everything if the person left no descendants, or if all the person's descendants are also the spouse's and the spouse has no other descendants. The spouse gets three-fifths if the spouse has descendants who are not the person's, and one-half if the person has descendants who are not the spouse's. Anything else goes to descendants, then parents, then the parents' descendants (brothers, sisters and their families), then grandparents and their descendants.
Law: W. Va. Code secs. 42-1-3, 42-1-3a
Source: Official page
Death certificates in West Virginia
Request certified copies from the Vital Registration Office. The fee information line is (304) 558-2931.
- Where to get it
- West Virginia Department of Health, Health Statistics Center, Vital Registration Office, 350 Capitol Street, Room 165, Charleston, WV 25301
- Official page
- Official page
Where to file in West Virginia
The Affidavit for Small Estate is filed with the clerk of the county commission (or its fiduciary supervisor) in the county that would handle the person's probate. Vehicle transfers go to the WV DMV. A transfer on death deed must be recorded with the clerk of the county commission where the property is, before the owner dies.
Good to know in West Virginia
- The affidavit is filed with the county clerk, not a court, and the clerk's certificate is valid for six months, extendable by up to six more months for good cause.
- An executor named in the will may file after 30 days; everyone else must wait 60 days.
- A holder's payment in good faith is not undone if the estate later turns out to be over $50,000.
National rules that apply in every state
Federal estate tax
- For a person who died in 2026, a federal estate tax return (Form 706) is required only if the gross estate, plus certain lifetime taxable gifts, is more than $15,000,000.
- Most estates owe no federal estate tax and do not need to file a federal estate tax return.
Law: 26 U.S.C. 2010(c)(3) (as amended by Pub. L. 119-21)
The final income tax return
- Report all income up to the date of death and claim all eligible credits and deductions.
- Someone must file the final federal income tax return of a person who died, the same way it would have been filed if they were alive.
- To claim a refund due to the person who died, attach Form 1310 (Statement of Person Claiming Refund Due a Deceased Taxpayer).
Law: Form 1310 instructions (Rev. December 2025)
Social Security
- Social Security retirement benefits are paid through the month before the month the person died.
- If the person had enough Social Security work credits (was fully or currently insured), a one-time death payment of $255 (or three times the person's basic benefit, if that is smaller) can be paid to a surviving spouse who lived with the person.
Law: 42 U.S.C. 402(a), 402(i)
Savings bonds
- If the person's savings bonds and other Treasury securities held directly with the Treasury are worth more than $100,000 at the date of death, the Treasury requires a court-administered estate.
Law: 31 CFR 353.71; FS Form 5336 (Rev. April 2026)
Debts
- Debts are generally paid from the money and property the person left (the estate).
- If the estate cannot pay a debt and no one else shared responsibility for it, the debt may go unpaid.
- You may have to pay if you co-signed the loan, were a joint account holder on a credit card (not just an authorized user), or state law makes a spouse responsible for certain debts, such as in community property states or states with laws on necessary costs like health care.
Law: 12 CFR 1006.6(a)(4)
A house with a mortgage
- For a home with fewer than five units, a lender may not call the whole loan due just because the home passes to a relative after the borrower's death, to a spouse or children who become owners, or to a surviving joint owner.
- Https://www.consumerfinance.gov/ask-cfpb/how-do-i-get-mortgage-information-about-a-home-i-inherited-en-217/
- Https://www.consumerfinance.gov/ask-cfpb/i-recently-inherited-a-house-the-mortgage-lender-said-its-required-to-determine-my-ability-to-repay-before-it-will-let-me-take-over-the-mortgage-loan-is-this-true-en-1939/
Law: 12 U.S.C. 1701j-3(d)(3), (5), (6); 12 CFR 1024.30(d), 1024.31
FDIC insurance on bank accounts
- After a deposit owner dies, FDIC insurance on the account stays the same for six months, unless the account is restructured.
Law: 12 CFR 330.3(j)
Medicaid estate recovery
- States must try to recover some Medicaid costs from the estate of a person who got benefits at age 55 or older: nursing facility services, home and community-based services, and related hospital and prescription drug services.
- The 'estate' includes at least the property in the person's probate estate under state law.
- Https://www.govinfo.gov/link/uscode/42/1396p?type=usc&year=mostrecent&link-type=html
Law: 42 U.S.C. 1396p(b)
Death certificates
- Certified copies of a death certificate come from the vital records office of the state where the death happened, not from the federal government.
Free help in West Virginia
A court self-help center or a legal aid office can check whether the estate qualifies, free of charge or at low cost.
- Legal Aid of West Virginia · 1-866-255-4370
- West Virginia Code chapter 44, article 1A (West Virginia Small Estate Act)
- WV DMV: Titles (when a registrant dies)
- LawHelp.org
- Legal Services Corporation (LSC) - Find legal aid
- Eldercare Locator · 1-800-677-1116
- Consumer Financial Protection Bureau (debt collection and mortgage complaints) · (855) 411-2372
More help on our sister sites
Questions about small estates in West Virginia
What is a small estate affidavit called in West Virginia?
In West Virginia this is called: Affidavit for Small Estate (West Virginia Small Estate Act); certificate and authorization of small estate. If a West Virginia resident owned no probate real estate in West Virginia and their personal probate property is worth $50,000 or less, a successor files a sworn affidavit with the clerk of the county commission.
What is the small estate limit in West Virginia?
Up to $50,000, 60 days after the death, filed with a court.
How long do I wait in West Virginia?
At least 60 days must have passed since the death. If you are the executor or personal representative named in the will, the wait is 30 days. In both cases no application to appoint a personal representative can be pending or granted anywhere.
Do I have to go to court in West Virginia?
Clerk of the county commission (or its fiduciary supervisor) in the county that would handle the person's probate, usually the county where the person lived. Recorded, not a court case.
How do I transfer a car after a death in West Virginia?
If the title was joint with 'OR', the surviving owner signs the title alone; if joint with 'AND', the survivor signs and an executor, administrator or legal heir signs for the person who died.
What happens to a bank account after a death in West Virginia?
Joint accounts with a surviving owner and payable-on-death accounts are nonprobate and go to the survivor or beneficiary. For an account in the person's name alone, the authorized successor presents the county clerk's certificate and authorization of small estate; the bank must pay and is released from liability.
Who inherits in West Virginia if there is no will?
If there is no will: the surviving spouse gets everything if the person left no descendants, or if all the person's descendants are also the spouse's and the spouse has no other descendants. The spouse gets three-fifths if the spouse has descendants who are not the person's, and one-half if the person has descendants who are not the spouse's.
Do I owe the person's debts in West Virginia?
The authorized successor may use the small assets to pay the costs of getting the certificate, funeral expenses and known creditors, and must pay known or ascertainable creditors before distributing to the successors.
- W. Va. Code chapter 44, article 1A (West Virginia Legislature)
- W. Va. Code 44-1A-1
- W. Va. Code 44-1A-2 (with statutory affidavit form)
- W. Va. Code 42-1-3
- W. Va. Code 36-12-5
- WV DMV: Titles
- WV DMV form DMV-185-TR Legal Heir Affidavit
- BMS Provider Manual Chapter 900 Estate Recovery (rev. 12/6/2024)
- CDC NCHS Where to Write for Vital Records: West Virginia