Probate in West Virginia: What Your Family Goes Through Without a Will
In West Virginia, probate handles most estates, with a short list of exceptions. If you’re hoping to avoid probate, these exceptions can be helpful. If the deceased does not have a will, the rules of intestate succession apply. An estate will go through probate in West Virginia if there is no will, with a few exceptions, outlined below.
- Any life insurance policies with listed beneficiaries.
- Any retirement accounts with listed beneficiaries.
- Any bank or brokerage accounts with a payable-on-death or transfer-on-death designations.
- Any property with join ownership and the right of survivorship.
If none of these apply, an estate without a will does go through probate in West Virginia. Under the West Virginia Small Estate Act, personal property valued at $50,000 or less, and no probate real property at all, can qualify for a simplified affidavit process instead of full administration. Even a small amount of real estate disqualifies an estate from this process.
Succession Laws Without a Will in West Virginia
Before getting into who inherits what, it helps to know how West Virginia treats marital property. West Virginia is a common law property state, not a community property state, meaning ownership will be determined by the names listed on titles, deeds, or other accounts.
If none of the exceptions above apply, the estate will go through probate and be distributed according to the following lines of succession.
- If your children are all shared with your spouse, and your spouse has no other children, your spouse inherits everything.
- If your children are shared with your spouse, but your spouse also has children from another relationship, your spouse inherits 3/5 of your estate. Your descendants inherit the remaining 2/5.
- If you have children who are not your spouse's, your spouse inherits 1/2 of your estate. Your descendants inherit the other 1/2.
- If you have no descendants, your spouse inherits everything.
- If you have children but no spouse, your children inherit everything, divided equally.
- If you have no spouse and no children, your parents inherit everything, then your siblings.
West Virginia Probate Process
West Virginia's probate system works differently from most states, which can be confusing. Rather than a dedicated probate court, the County Commission in each county holds exclusive jurisdiction, delegating most of the practical work to a Fiduciary Supervisor. West Virginia has no state estate or inheritance tax that is imposed at the state level.
Avoiding Probate in West Virginia
Probate isn't mandatory for every asset. Here's how people commonly circumvent that process.
- A revocable living trust lets you have full control over your estate as the trustee, while naming a successor trustee who will manage distributing your assets after your death.
- Beneficiary designations can be placed on financial and retirement accounts to identify who will inherit.
- Joint ownership on property that also has the right of survivorship will automatically transfer to a new owner.
