Probate in West Virginia: A Complete Guide

West Virginia probate has a unique structure: estates are administered through the County Commission (the county's governing body) with the help of Fiduciary Commissioners — appointed officials who supervise the administration. There is no separate Probate Court. This guide walks through every step.

Does West Virginia Always Require Probate?

No. Assets that pass outside of probate include those held in a revocable living trust, real estate transferred by a Transfer-on-Death Deed, accounts with payable-on-death or transfer-on-death designations, life insurance and retirement accounts with named beneficiaries, joint tenancy property with right of survivorship, and tenancy by the entirety for spouses.

The West Virginia Probate System

West Virginia uses a unique system. The County Clerk records the will and issues Letters; the County Commission (the elected county governing body) has jurisdiction over probate; and Fiduciary Commissioners (lawyers appointed by the County Commission) supervise the actual administration. There is no separate Probate Court like in most states.

Small Estate Procedure

For estates with personal property of $50,000 or less, where the decedent did not own any real estate or interest in real estate, West Virginia allows administration by affidavit without appointing a personal representative (W.Va. Code § 44-1A-2). The affidavit is filed with the county clerk or fiduciary supervisor. If the person filing was nominated as executor in a will, they can file 30 days after death; anyone else must wait 60 days. The resulting certificate and authorization is valid for 6 months, extendable for another 6 months for good cause.

Real estate ownership disqualifies an estate from this small estate procedure entirely — the West Virginia Legislature removed real estate from the Small Estate Act effective July 9, 2025. If the decedent owned any real estate or interest in real estate, even a modest amount, full probate administration through the County Commission is required regardless of overall estate value.

How to Open Probate in West Virginia

1. File the will (if any) and a Petition for Probate with the County Clerk of the county where the deceased was domiciled.
2. The County Clerk admits the will to probate and qualifies the executor (or administrator if there is no will).
3. The County Commission may appoint a Fiduciary Commissioner to supervise administration.
4. The County Clerk issues Letters Testamentary or Letters of Administration.

Personal Representative Compensation

West Virginia sets a graduated statutory commission schedule for personal representatives (W.Va. Code § 44-4-12a), not a flat percentage:

The personal representative also gets a 1% commission on the value of any unsold real estate and on non-probate property includable in the federal estate tax computation — but no commission on joint or survivorship property. The County Commission can reduce or deny the commission if duties weren't faithfully discharged, or increase it for extraordinary services. A will can also override the statutory schedule with express language.

Examples using the graduated schedule: a $200,000 estate generates 5% × $100,000 + 4% × $100,000 = $9,000 in commissions. A $500,000 estate generates 5% × $100,000 + 4% × $300,000 + 3% × $100,000 = $20,000.

The Fiduciary Commissioner's Role

For estates not eligible for simplified administration, the County Commission appoints a Fiduciary Commissioner. The Commissioner supervises the personal representative's administration, including reviewing the inventory, hearing creditor claims, and approving the final settlement before submitting it to the County Commission for final approval. Fiduciary Commissioner fees are paid from the estate.

Creditor Claims in West Virginia

The fiduciary supervisor publishes a Notice of Claim as a Class II legal advertisement. Creditors then have 60 days from the date of first publication to present their claims (W.Va. Code § 44-3A-4) — one of the shortest creditor periods in the country. Claims not presented within that window, or on which an action isn't timely filed, are barred from recovery against the personal representative.

Intestacy in West Virginia

If there is no will, West Virginia's intestacy statute (W.Va. Code § 42-1-3) applies:

• Entire estate to the spouse if there are no surviving descendants, or if all surviving descendants are shared with the spouse and the spouse has no other descendants of their own.
• 3/5 of the estate to the spouse if all surviving descendants are shared with the spouse, but the spouse also has one or more descendants from outside the marriage.
• 1/2 of the estate to the spouse if one or more of the decedent's surviving descendants are not descendants of the spouse.

Whatever doesn't pass to the spouse passes to the decedent's descendants by representation.

West Virginia Has No State Estate or Inheritance Tax

West Virginia repealed its estate tax effective for deaths after 2005 and has no inheritance tax. Only the federal estate tax applies, with its exemption of $15 million per person for 2026 — a threshold the vast majority of West Virginia estates fall well under.

Spousal and Family Allowances

West Virginia provides several allowances paid before creditors: a homestead allowance, exempt personal property, and a year's support allowance for the surviving spouse and minor children. I was not able to confirm current specific dollar figures for these allowances against an official West Virginia source with confidence, so this guide intentionally doesn't state exact numbers — confirm the current amounts with a West Virginia probate attorney or the County Commission's Fiduciary Supervisor before relying on a specific figure.