What to gather for a small estate in West Virginia

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

1. Wait 60 days after the death (30 days if you are the executor named in the will).
2. Confirm the person owned no probate real estate in West Virginia and that the personal probate assets total $50,000 or less.
3. Fill in the Affidavit for Small Estate and sign it before a notary.
4. File it, with the death certificate and any original will, with the clerk of the county commission and pay the recording fees.
5. The clerk records it, mails a copy to the people listed, and issues the certificate and authorization of small estate.
6. 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.

Forms

• Affidavit for Small Estate (statutory form in W. Va. Code 44-1A-2(e))

Law: W. Va. Code secs. 44-1A-1 to 44-1A-5

Source: Official page