Probate Law in West Virginia

What Is a Probate Law?

A probate is a legal process that determines the validity and administration of a last will and testament. When an individual leaves behind assets, the court appoints an executor (if one is not named in the will). In either case, the appointed official collects all remaining assets, pays off any remaining liabilities, and disperses the remaining assets to beneficiaries listed in the will or to beneficiaries designated by the executor (if no will is present), all according to West Virginia probate law.

How Does West Virginia Probate Law and the Probate Process Work?

Locating the Will

In most cases, the decedent leaves clear direction regarding the location of the last will and testament or files one with a primary attorney. However, sometimes people have to go digging for one. In other cases, there is no will and the West Virginia court-appointed executor must handle all assets. 

It is also possible that the deceased created a living trust instead. A living trust is a document that places all assets into a trust and that transfer to a designated trustee upon death. Living trusts do not require any probation or courts. Many parties elect to go this route for the sake of convenience and avoiding drawn-out court battles. 

Probate Courts in West Virginia mainly deal with the financial and family issues that arise in the apportionment of estates. They also handle issues and concerns that arise from last will and testaments, hereditary property, or parentage issues such as adoption. If you are facing these issues your case may be taken to a probate court, such as the Fiduciary and Probate section of the Kanawha County Courthouse. An experienced probate attorney in West Virginia can help you with these issues.

 Notifying the Court

Notifying the court to open the estate is the next step. The West Virginia probate law court clerk can handle this step, unless there is a named executor.

After the court receives notification, a scheduled hearing takes place. This officiates the executor appointee and grants him or her legal authority to operate on behalf of the last will and testament.

If there is no will and no designated executor, the court chooses the executor. Generally, the surviving spouse is first in line. After that, any adult children, parents, or siblings receive consideration.

Consolidating Assets

The executor must identify the decedent’s remaining assets. To do this, she or he reviews any related banking or financial documents and any other personal documents that could lead them toward recovering assets. Some examples of documents to collect are insurance records, titles, stock portfolios, and tax returns or filings.

To freeze and later close accounts, the executor must notify any financial institutions with outstanding accounts of the individual’s death. If there are any physical valuables in the decedent’s property, it is not uncommon for the executor to collect these items to prevent theft or damage.

The executor then determines the valuation of each item of the estate. This can be a lengthy process depending on the ease of locating all assets, including real estate, stocks, bonds, etc. Notifying creditors is the next step.

Notifying Creditors

Generally, the executor notifies creditors associated with the estate so they can make a claim if they have outstanding balances. Creditors have a specific time frame in which to file a claim, and this window can vary depending on state law.

A creditor in West Virginia has 90 days after the date of death to file a legitimate claim against an estate. But they have a period of 1 year to collect on the debt. If this time period passes, and collection has not been completed, the debt will be rendered un-collectable.

Squaring Away Final Payments

The executor pays any funeral expenses (unless the family covers them) and any debts or taxes from the estate. The executor determines which creditor claims are accurate. Then, the executor squares away any outstanding debts to clear the estate of all obligations before being dispersed according to the will.

Proceeding With the Court

After valuing all the decedent’s assets and paying all outstanding debts, the executor submits a report detailing all estate spending to the West Virginia court. At this point, a judge reviews the materials. Assuming everything was done correctly, they render a decision to clear the executor to move forward with the final step.

Executing the Last Will and Testament

At this point, the executor disperses the assets to the designated beneficiaries laid out in the will. Depending on how detailed the will is, this could either be a simple process or it may divide the remaining family. A West Virginia probate law attorney can help you or a loved one avoid mistakes and counsel you on the best course in the event of a family estate battle.

The West Virginia Legislature states that once an individual has passed the court will appoint an executor to execute the last will and testament. The executor will then marshal the decedent’s assets and notify all parties such as surviving spouses, children, beneficiaries, and creditors. Once the valid creditor claims have been settled, the executor will divvy up the assets according to the will. When this is completed, a final tax return is filed on behalf of the deceased and the estate is closed.

If there is no last will and testament, the executor assigns beneficiaries in accordance with West Virginia state laws. Generally speaking, the surviving spouse is first in line to receive any remaining assets. After that, the decedent’s children come next. Any surviving siblings would be next. From there, the executor works down through the surviving family based on their direct relation.

Is Probate Law Necessary?

No. There are alternatives to probating a will, but this really depends on the circumstances surrounding the decedent. The larger, more complex estates require attention to detail and patience as the executor works through all the different assets. Smaller estates are straightforward, which means involving the West Virginia probate law court may not be necessary to settle the estate.

The Legal Aid Law Library of West Virginia lays out the criteria for probate in the state. Probate is not necessary in West Virginia if the estate totals less than $100,000. It is also important to remember that probate can be avoided if there is a single successor, such as a spouse or only child, or if the decedent has created a living trust.

What Are the Differences Between a Living Trust and a Will?

Living trusts are a way to avoid probation. However, this is only one of the primary differences between a living trust and a will. Another main difference is that a living trust is only as good as the assets therein. This means that if you pass away without funding the trust with your assets, it is practically worthless. On the other hand, you do not have to fund a will, as you merely choose where to transfer your assets upon your death. It is important to note that there is no perfect solution for everyone.When deciding between a living trust and a will, bear in mind your risk of losing mental soundness or how close you may be to death. 

Setting up where your assets go after you die is an important decision. This is why you should consult with a West Virginia probate law attorney to make the correct decision.

Work With an Experienced Local Probate Law Attorney in West Virginia

Probate law attorneys assist with valuing your total assets and can provide insight into what the best move would be for you. Are you in need of a West Virginia probate law attorney who can help you and preserve the future of your family? We can even help you connect with an attorney across West Virginia state lines.

Submit a request online or call us today at (866) 345-6784 to get in touch with an experienced probate law lawyer in your area!

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