When your loved one dies without a will, you suddenly take a crash course in local probate law. While it can seem like a daunting step, keep in mind that the probate process should act as a tool to help you administer their estate.
Jump ahead to these sections:
- West Virginia’s Intestacy Laws Explained
- How Does Probate Work in West Virginia If There Is No Will?
- Who Typically Inherits Assets in West Virginia If There Isn’t a Will?
- Frequently Asked Questions: Dying Without a Will in West Virginia
Through the probate process, your or another heir obtain the authority to act on behalf of the estate. As a result, not only do you transfer the decedent’s assets to the new owners, but you also ensure creditors receive payment for allowable claims.
Many estates can skip the full probate process through the small estate affidavit and even through non-probate transfers, so wrapping up your loved one’s estate may turn out to be easier and faster than expected.
West Virginia’s Intestacy Laws Explained
Intestacy laws provide the guidance for distributing estate assets that would typically come from a will. When there’s no will, the state laws fill the gap to create a consistent, one-size-fits-all approach to inheritance.
Many people assume that following intestacy laws lead to the state taking part of the estate or to a more complicated process. In West Virginia, intestate estates follow the same process as those without a will. The difference is that the laws determine who inherits rather than the decedent deciding through a will. As a result, the state rarely gets any of the property and only takes it if the decedent left no surviving spouse or biological family members – even distant ones.
How to determine the probate estate
The intestacy laws only apply to the decedent’s probate estate, which is rarely everything the decedent owned. Several types of assets often stay out of the probate estate, excluding them from the estate’s total value and the laws of intestacy because the decedent already designated a beneficiary for them.
These previously designated assets transfer without any proof of authority on behalf of the estate. Instead, the recipient simply presents a death certificate to the account custodian to take ownership.
Non-probate transfers can take many forms, but the most common are designated beneficiaries on financial accounts, often called payable-on-death beneficiaries. Look for these designations on bank accounts, investment accounts, life insurance policies, and retirement or pension plans.
Real estate can also transfer automatically upon the owner’s death through joint tenancy with the right of survivorship ownership and beneficiary deeds. Both are special deed designations that the decedent would make while still alive.
Owning a property as joint tenants with the right of survivorship means that if one owner dies, the surviving owners retain complete ownership of the property. The probate rules don’t apply to the decedent’s portion because it is not divisible or separate from the other owner’s.
Alternatively, property owners can file beneficiary deeds that name the successor owner for their property. They only take effect upon the current owner’s death, so there’s no risk of someone stealing or taking away the property while the owner is still alive.
How Does Probate Work in West Virginia If There Is No Will?
The West Virginia probate code establishes a few methods for obtaining the authority to transfer someone’s assets after they die.
Opening a probate case
Opening a probate case is the first step to resolving the estate’s outstanding issues and needs for many estates. Filing the paperwork with the court initiates the process of getting a personal representative appointed for the estate.
The court issues letters of administration as proof of the personal representative’s authority to act on behalf of the estate. Once they have those letters in hand, they will be able to access all of the decedent’s accounts, establish an estate account, and receive and distribute funds on behalf of the estate.
Usually, the court’s portion of the estate process is small in the whole estate administration timeline. Its role is to give the personal representative the legal authority to act on behalf of the estate, but the court itself does not make day-to-day decisions for the estate or handle the logistics of the wrapping up the decedent’s affairs. The court remains where the heirs and creditors can petition to resolve conflict or raise concerns about the personal representative’s actions.
The personal representative’s duties
Accepting the appointment of a personal representative comes with accepting the role's duties.The state requires that the personal representatives of intestate estates be bonded. The bond serves as insuranceift the personal representative breaks their fiduciary responsibility to the estate. You can either obtain a bond through an insurance company or sign a property bond based on real estate located in the county where you’re filing the case.
After appointment, the personal representative finds and secures the estate’s assets. Sometimes that is as easy as transferring the decedent’s bank account balances into the estate account. Other times, it’s more complicated, like evicting people from the decedent’s property or repairing it to keep out the elements and prevent damage.
Some estates can be probated a bit more quickly through the state’s simplified probate procedures. The simplified process allows for the immediate distribution of assets and closure of the estate, but to qualify, the personal representative must represent to the court:
- That the estate is worth less than $100,000 excluded real estate; or
- That the personal representative is the sole beneficiary; or
- That the surviving spouse is the sole beneficiary; or
- That all heirs and the personal representative agree that there is no disagreement about the distribution of the estate and that there are sufficient funds to cover debts.
The simplified process allows the personal representative to quickly close the estate by filing an affidavit with the court declaring that there are no outstanding claims, that the claims period has expired, and a description of the distribution of the assets.
Small estate affidavit
West Virginia recently enacted a new process to allow heirs to collect the assets of smaller estates via affidavit rather than going through the court procedure of appointing a personal representative.
The surviving spouse or other heir presents an affidavit that declares they have the right to collect the property to the person or business in possession of the asset. The affidavit also includes information about any other heirs, identifies the property being collected, and makes statements about the decedent. Fortunately, this is a fill-in-the-blank form made available at your local court’s website (e.g., Wood County, West Virginia).
The small estate affidavit provides several benefits to heirs trying to administer the estate, but it still holds them to the rules of the intestacy laws. It also does not relieve them of the responsibility of paying creditors.
To qualify for the small estate process, the probate estate can contain up to $50,000 in personal property and $100,000 of real estate.
Who Typically Inherits Assets in West Virginia If There Isn’t a Will?
As in most states, West Virginia intestacy laws predominantly funnel the decedent’s assets to the surviving spouse or descendants. The exact breakdown varies depending on the specific family structure.
When a married person dies, their surviving spouse inherits the entire estate if the decedent had no children. And, conversely, the children inherit everything when the decedent is unmarried.
In order to ensure children receive a portion of the estate in blended families, the state’s intestacy laws divide the inheritance between the surviving spouse and any children when the decedent had both.
The spouse keeps three-fifths of the intestate estate when the decedent has children with the spouse and from another relationship. The children split the other two-fifths. When the spouse and decedent had no children together but the decedent had children from another relationship, the spouse’s share goes down to half of the estate. The children take the other half.
The surviving spouse does inherit the entire estate when all of the decedent’s children are also the children of the surviving spouse.
The decedent’s parents inherit only if the decedent had no children or a spouse. And, when there are no surviving parents, the decedent’s siblings inherit the estate.
Frequently Asked Questions: Dying Without a Will in West Virginia
While many family situations allow for an obvious and straightforward application of the intestacy laws, others can be much more confusing. Blended families, unclear parentage, and the death of heirs before the decedent can all complicate inheritance. If in doubt about applying the laws of intestacy to your family, consult with an experienced West Virginia attorney.
What happens when your parent dies without a will?
When your parent dies without a will, the children’s inheritance varies based on the decedent’s marital status and the biological relationship between the spouse and children. If the children do inherit, all siblings get equal shares of the estate. Grandchildren can inherit in the place of their parent if any of the decedent’s children die before them.
The decedent’s children inherit and divide the entire estate when their parent is unmarried. However, if the decedent was married to their other parent, they inherit nothing.
Children would inherit two-fifths of the intestate estate if their parent had children with the surviving spouse and someone else. If none of the decedent’s children are the surviving spouse’s children, the children inherit one-half of the estate.
What are a surviving spouse’s rights if there’s no will?
The surviving spouse has priority for appointment as personal representative, but their share of the decedent’s estate depends on whether the decedent had children. The surviving spouse of a childless decedent inherits the entire intestate estate. They also inherit the entire estate if all the decedent’s children are also the spouse’s children.
The surviving spouse’s share drops to three-fifths of the estate if they had children with the decedent but the decedent also had children from another relationship. When the surviving spouse had no children of their own, but the decedent had children, the spouse receives one-half of the estate.
Are there any probate exemptions if you die without a will in West Virginia?
The small estate affidavit acts as a probate shortcut for the heirs of estates worth less than $50,000 in personal property and $100,000 in real estate. Rather than filing a case with the probate court for the appointment of a personal representative, heirs present the affidavit to banks and others to collect the decedent’s property.
Beyond the small estate affidavit, many assets often end up being exempt from the probate process because they transfer without any additional authorization from the court or probate code. The decedent would have set up non-probate transfers during their lifetime. They frequently take the form of payable-on-death beneficiaries on accounts or property owned as joint tenants with the right of survivorship.
Who is considered next of kin in West Virginia?
The surviving spouse has both the priority for appointment as personal representative and stands to inherit the largest share of the estate. Following the surviving spouse, the decedent’s children, parents, and siblings may be next of kin.
Make a Will for the Easiest Estate Administration
While many people successfully navigate West Virginia’s intestate estate administration process, making a will not only ensures your wishes are known but also reduces the burden on your family left behind. You can customize your gifts to ensure those who need to be taken care of receive the support you intend, and you can give as much or as little to each person as you want.
A clear will removes the burden from your family of guessing your wishes and from your personal representative from being required to post bond.
- “Chapter 41. Wills.” West Virginia Code, West Virginia Legislature,2022. Wvlegislature.gov
- “Chapter 42. Descent and Distribution.” West Virginia Code, West Virginia Legislature,2022. Wvlegislature.gov
- “Chapter 44. Administration of Estates and Trusts.” West Virginia Code, West Virginia Legislature,2022. Wvlegislature.gov