West Virginia Probate Process: Step-by-Step Guide
How to administer a West Virginia estate under WV Code Chapter 44 — from qualifying before the County Commission through the Fiduciary Commissioner settlement and final discharge
West Virginia Probate at a Glance
Overview: How West Virginia Probate Works
West Virginia probate under WV Code Chapter 44 is administered by the County Commission — not a separate Probate Court — in each of the state's 55 counties. After qualifying before the County Commission, the Personal Representative reports to the Fiduciary Commissioner, a county-level officer who reviews all estate accountings.
Key features distinguishing WV probate:
- County Commission as probate court: West Virginia has no separate Probate Court. All 55 counties use the County Commission.
- Fiduciary Commissioner: Reviews estate settlements — similar to Virginia's Commissioner of Accounts but county-level.
- Short creditor period: Only 60 days from first publication — one of the shortest in the region.
- High small estate threshold: $100,000 — the highest in the mid-Atlantic and Southeast.
- No estate tax, no inheritance tax: All assets pass free of WV state death taxes.
Determine Whether Probate Is Required
West Virginia's $100,000 Small Estate Affidavit threshold (WV Code § 44-1-7) means many estates avoid formal probate entirely. Only open County Commission administration if the total personal property exceeds $100,000 or if the estate includes real estate owned solely by the deceased.
Will Requirements
| Will Type | Requirements | Valid in WV? |
|---|---|---|
| Attested will | Written, signed by testator, 2 competent witnesses | ✅ Yes |
| Holographic will | Entirely in testator's handwriting, signed | ✅ Yes (WV Code § 41-1-3) |
| Nuncupative (oral) will | Personal property only; strict requirements | ⚠️ Limited |
| Electronic will | Not currently recognized | ❌ No |
Qualify Before the County Commission
File the will and application for probate with the County Commission in the county of the deceased's domicile. Submit the original will and certified death certificate. Pay the filing fee. Take the oath before the County Commission (qualify). Receive Letters Testamentary (with will) or Letters of Administration (without will). Request 8 certified copies.
File with the County Commission in the county where the deceased was domiciled at the time of death — not necessarily where they owned property. Find your county's Commission contact at courtswv.gov.
Intestacy (No Will) — WV Code § 42-1-3
| Heirs Surviving | Distribution |
|---|---|
| Spouse only | Entire estate to surviving spouse |
| Spouse + children of both | All to surviving spouse |
| Spouse + children not of spouse | ⅓ to spouse; ⅔ to children |
| Children only (no spouse) | Equal shares to all children |
| No spouse, no children | Parents, then siblings, then next of kin |
Publish Notice to Creditors — 60-Day Period
Publish a Notice to Creditors in a newspaper of general circulation in the county. The creditor claim period is 60 days from the date of first publication (WV Code § 44-2-3). File proof of publication with the County Commission. Mail direct written notice to all known creditors. Do not make final distributions before 60 days from first publication.
West Virginia's 60-day creditor period is significantly shorter than Virginia (1 year), Maryland (6 months), Kentucky (6 months), North Carolina (3 months), and Pennsylvania (1 year). This means WV estates can begin final distributions and move toward closing sooner than in most neighboring states.
File Appraisement (Inventory)
File an Appraisement of all estate assets with the County Commission. The Appraisement lists all probate assets with their appraised fair market values as of the date of death. Pay the appraisement fee to the county (a percentage of appraised value — varies by county). Obtain certified appraisals for real estate and high-value personal property.
Manage Estate During Administration
Collect all estate assets, deposit income into the estate bank account, maintain estate property, and keep meticulous records of all receipts and disbursements. These records will be submitted to the Fiduciary Commissioner in the estate settlement.
Pay Debts and Taxes
After the 60-day creditor period expires, pay valid creditor claims in priority order. West Virginia has no estate tax and no inheritance tax.
Priority of Claims
| Priority | Category |
|---|---|
| 1st | Costs of administration (court fees, Personal Representative fees, attorney fees) |
| 2nd | Funeral and burial expenses (reasonable) |
| 3rd | Family allowance (surviving spouse and minor children) |
| 4th | Debts owed to the State of West Virginia |
| 5th | Federal and state taxes |
| 6th | All other creditors (unsecured) |
West Virginia has no estate tax and no inheritance tax. Unlike neighboring Pennsylvania (which has an inheritance tax of 4.5–15%), all WV assets pass to heirs free of state death taxes. File the deceased's final WV Form IT-140 (April 15) and Form IT-141 (fiduciary income tax, April 15) if the estate earns income.
File Settlement with Fiduciary Commissioner
After all debts and taxes are paid, file a settlement with the Fiduciary Commissioner summarizing all estate receipts and disbursements. The Commissioner reviews the settlement, charges a review fee, and may schedule a hearing for complex accounts. The Commissioner's approval is required before the estate can be distributed and closed.
Each of West Virginia's 55 counties has its own Fiduciary Commissioner with potentially different form requirements and review processes. Contact the Fiduciary Commissioner in your county early in the administration to understand their specific requirements — this avoids delays when you file the final settlement.
Distribute Assets and Close the Estate
After the Fiduciary Commissioner approves the settlement, distribute remaining assets to heirs. Obtain signed receipts from each distributee. Transfer real estate by deed recorded with the county Clerk of Court. Receive final discharge from the County Commission. Close the estate bank account.
Key West Virginia Probate Statutes
| Statute | Subject |
|---|---|
| WV Code Chapter 41 | Wills — execution requirements |
| WV Code § 41-1-3 | Holographic wills |
| WV Code Chapter 42 | Descent and Distribution (intestate succession) |
| WV Code § 42-1-3 | Intestate distribution — spouse and children shares |
| WV Code Chapter 44 | Administration of Estates (primary probate statute) |
| WV Code § 44-1-7 | Small Estate Affidavit — $100,000 threshold |
| WV Code § 44-2-3 | Notice to Creditors — 60-day creditor period |
5 Common WV Probate Mistakes
| Mistake | Consequence | How to Avoid |
|---|---|---|
| Not checking the $100K affidavit threshold first | Unnecessary court filings and fees for estates that qualify for affidavit procedure | Calculate total probate personal property before opening full administration |
| Distributing before 60-day creditor period | Personal liability if creditors make claims after distribution | Wait 60 days from first publication before final distributions |
| Not contacting the Fiduciary Commissioner early | Settlement rejected or delayed due to local form requirements | Contact your county's Fiduciary Commissioner at the start of administration |
| Forgetting WV income tax filing | Late filing penalties and interest on IT-140 and IT-141 | File WV Form IT-140 (deceased's final return) and IT-141 (estate fiduciary) by April 15 |
| Filing in the wrong county | Case dismissed; must refile; timeline delayed | File with the County Commission in the county of the deceased's domicile — not where property is located |
Ready to Start West Virginia Probate?
Our step-by-step WV Probate Guide covers every phase — from County Commission qualification through the Fiduciary Commissioner settlement and final discharge.