Small estate checker for West Virginia

Enter the date of death and what the person owned. The page adds what the state counts and compares it with the limit for that date. It does not decide anything.

Worked out in your browser. Nothing you enter here is saved or sent.

The limit is picked from the date of death.

Enter the date of death and the values you know

Leave a box empty if the person had nothing of that kind. We add up only what the state counts.

The limits this checker uses

These come from the state's law as we checked it. The checker picks the row that matches the date of death you enter.

Administration of a small estate upon affidavit and without appointment (Affidavit for Small Estate)

60 days after the death.

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 propertyHow it is treatedDetails
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

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
  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.

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

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

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)

Related pages

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.