Probating the Will
A West Virginia Last Will and Testament must be probated in order to be able to pass any property. This requires the original Will (not a photocopy) to be offered for probate with the Probate Department of the relevant Circuit Court.
The court will accept the Will for probate in solemn form if it is satisfied that the execution requirements have been complied with. Unless it’s self-proved, you will require a deposition from the attesting witnesses. Difficulties arise if the witnesses are deceased or cannot be located.
The court will issue “Letters of Administration” in order to appoint either an executor (under the Will) or an administrator (if there is no Will) (both known as a Fiduciary) to administer the estate.
Executor Appointed by a West Virginia Will
To be appointed as executor, the person named as such in the testator’s Will must first take an oath and give bond before the appropriate court or clerk. §44-1-1. The bond amount will be set after an interview with the court to determine the estimated value of the estate. If later inventory and appraisal reveals the assets are greater or smaller than first estimated, the bond can be adjusted accordingly.
Prior to being formally appointed, an executor named by the testator’s West Virginia will only has powers to provide for the burial, pay reasonable funeral expenses and take necessary action to preserve the estate from waste. §44-1-1
Executor unable to Act
If the executor named in the Will has died or refuses to act, an there are no alternate executors, then the court may appoint a person who would have been entitled to administration if there had been no will in order to act. That person must take the same oath and provide bond. §44-1-2
Who is the administrator is there is no West Virginia Will?
The role of administrator will be granted to the distributees (persons entitled to distribution of the estate) who apply for the role. First in priority is the husband or wife, then any others as the court or clerk sees fit. If no person applies within 30 days of the death, then the court may appoint one or more of the testator’s creditors or any other person. §44-1-4
What is a curator?
Before the executor or administrator is appointed or while the West Virginia will is being contested, the court may appoint a curator to ensure the estate is not wasted. The curator may demand, sue for and recover debts owed to the deceased and all his personal estate. If there is a Last Will in existence, he/she may collect any rents or profits from real estate and lease the property up to the period of the curator’s incumbency. §44-1-5
Estate / Inheritance Taxes
West Virginia has adopted the Federal guidelines with respect to estate tax returns. If the gross estate does not exceed the relevant exemption, then you will not need to file a Federal Estate Tax Return or a West Virginia Estate Tax Return (ET-76). It only needs to be filed if you are required to file the federal return.
However, even if you aren’t required to file a tax return, you must obtain release or certificate of non-liability from the West Virginia State Tax Department.
The relevant instructions and forms are generally sent to the executor or administrator after appraisement has been filed.