West Virginia Estate Planning Checklist: What to Organize Before You Die (or Before Probate Starts)

Most estate planning articles want to talk about trusts and tax strategies. This one is going to talk about what actually goes wrong — and what you or your loved one can do right now to prevent the mess that falls on whoever is left to clean it up.

In West Virginia, that mess is particularly complicated. The state's decentralized probate system, its history of fragmented mineral rights ownership, and recent changes to the Small Estate Act create traps for families that look like they've got everything in order. The checklist below addresses these specifically.

Whether you're planning your own estate or you've just inherited the job of sorting through someone else's affairs, this is where to start.

The Will

A valid West Virginia will must be in writing, signed by the testator, and witnessed by at least two competent individuals who are not beneficiaries under the will. Handwritten (holographic) wills can be valid if entirely in the testator's handwriting and signed, but they're more vulnerable to contest and harder for courts to parse.

What a will must do to actually help your executor:

• Name an executor explicitly. If no executor is named, the court appoints an administrator — often a family member who may not be the right choice, especially in blended family situations.
• Address the bond requirement. A will that explicitly waives the surety bond requirement saves the estate a meaningful expense (and the executor significant hassle). Without a waiver, a bond is typically required.
• Include residuary language. Assets not specifically named in the will need to go somewhere. A residuary clause ("everything else to...") prevents these assets from passing by intestacy rules, which may not align with what the testator actually intended.
• Name alternates. Beneficiaries and executors die too. Name backup designations.
• Be specific about real estate and mineral rights. Ambiguous property descriptions create title problems. If you own severed mineral rights in a particular county, name the property specifically, including parcel numbers if possible.

The will must be filed with the county clerk within 30 days of death. This is a strict deadline. A will located six weeks after death is still valid, but missing the filing window creates complications.

The Small Estate Act Reality Check (Post-July 2025)

This is the piece of West Virginia estate planning that most generic resources get wrong — because they haven't caught up with a significant 2025 legislative change.

Prior to July 9, 2025, West Virginia's Small Estate Act allowed families to use a simplified affidavit process if personal property was $50,000 or less AND real property was $100,000 or less. Under that framework, many modest estates with a small house or family land could bypass formal probate.

Effective July 9, 2025, House Bill 2867 eliminated real estate from the Small Estate process entirely. An estate now qualifies as a Small Estate strictly and exclusively if it contains $50,000 or less in personal property assets and no probate real estate of any kind. A fractional interest in a hunting cabin, a small plot of family land, a partial share in severed mineral rights — any of these disqualifies the estate entirely.

Estate planning implications:

If you own real estate in West Virginia — including severed mineral rights, which are legally classified as real property — your estate will require full probate administration regardless of how modest your overall assets are. Plan for that. Tell your family. Budget accordingly. And consider whether tools like transfer on death (TOD) deeds or adding a co-owner with right of survivorship could take the property out of probate.

One critical caution: if you're considering a TOD deed specifically to avoid Medicaid recovery on a home, West Virginia law provides that an existing Medicaid lien remains attached to the property even after it transfers to the death beneficiary outside of probate. A TOD deed does not automatically shield the home from the Department of Human Services. Get proper legal advice before assuming this strategy works.

The Medicaid Planning Piece

If you or a family member is over 55 and has received or may in the future receive nursing facility care or home and community-based waiver services through West Virginia Medicaid, the state has a legal right to recover those costs from the estate after death.

The DHHR holds priority creditor status in West Virginia probate — meaning they're paid before most private creditors and before beneficiaries receive anything. The claim is based on the total Medicaid benefits paid on behalf of the recipient.

Deferrals exist but they are not forgiveness: Recovery is delayed as long as a surviving spouse, minor child under 21, or blind or totally disabled adult child lives in the home. But the deferral is a pause — the lien remains on the property. When the protected individual moves out or passes away, the state executes the recovery.

What you can actually do before the crisis hits:

• Document any care you provide to a parent that might qualify for an "adult child caregiver" hardship waiver. To qualify, an adult child must have lived in the parent's home continuously for two years before the parent entered Medicaid care, provided care that demonstrably delayed nursing home admission, and continued residing in the home until death. This requires proving all three elements with documentation.
• If you operate a family business on real property that might be subject to recovery, document the business's dependence on that property now — before the Medicaid application is even filed.
• Review whether the estate will fall below $5,000 in gross value at death, which triggers an automatic exemption from recovery.

Mineral Rights: The Hidden Asset Nobody Thinks to Plan For

West Virginia has a long history of surface rights being severed from subsurface mineral rights — coal, oil, and natural gas — often dating back to the late 1800s and early 1900s. If your family owned land in an Appalachian county, there is a meaningful chance some member of your extended family tree sold off the mineral rights generations ago, or conversely that you hold fractional mineral rights without realizing it.

If you own producing mineral rights, royalty payments from operators like Antero Resources or CNX stop the moment ownership transfer is unclear. Heirs who inherit mineral rights must formally transfer the title in the county deed records before the operator will resume royalty payments. This requires probate documentation — and because mineral rights are real property, they fall under the post-July 2025 rule that requires full probate.

Before you die:

• Identify all mineral rights you own, including partial interests in other counties or properties you may not have thought about in years.
• Locate any oil and gas leases. These are active contracts with royalty payment obligations.
• List the current operator (the company issuing your 1099-MISC for royalties) and their contact information.
• Consider having a mineral rights attorney review the title history to identify any unclear ownership before it becomes your executor's problem.

Out-of-state residents with West Virginia mineral rights need to understand ancillary probate. If the decedent lived in another state, their home state probate does not transfer West Virginia real property. A separate ancillary probate filing (or an Affidavit for Ancillary Administration) must be opened in the specific West Virginia county where the minerals are located. This is a parallel process, not an extension of the home state proceedings.

The Document Assembly Checklist

Beyond legal documents, what your executor actually needs is a clear map to your life. The following are not optional courtesies — they are the practical assets that determine how long administration takes and how many dead ends your executor hits.

Identity and civil records:

• Social Security card (or SSN documented securely)
• Birth certificate
• Marriage certificate(s), divorce decrees if applicable
• Military discharge papers (DD-214) if a veteran

Financial assets:

• Bank and investment account statements listing institution names, account numbers, and whether the account has a TOD or POD beneficiary designation
• Life insurance policies: insurer name, policy number, face amount, named beneficiaries
• Retirement accounts (IRAs, 401(k)s): custodian, account numbers, beneficiary designations
• Annuity contracts

Real property:

• Deeds for all real estate owned
• Property tax statements (to identify all parcels)
• Title insurance policies
• Mortgage statements if applicable

Mineral rights:

• Deeds conveying mineral interests
• Current lease agreements with operators
• Division orders specifying royalty percentages
• Recent 1099-MISC forms from operators

Business interests:

• Operating agreements, partnership agreements, buy-sell agreements
• EIN for any business entity

Debts and recurring obligations:

• Mortgage, auto loan, and personal loan statements
• Credit card accounts
• Medical bills currently in payment
• Any outstanding IRS or state tax liabilities

Digital accounts:

• Email account login credentials stored securely
• Social media accounts
• Online banking portals
• Password manager access

Store all of this in one location that your executor can access. A fireproof document box at home, a file at your attorney's office, or a secure digital vault with your executor named as a trusted contact all work. What doesn't work is scattered across multiple filing cabinets and in your head.

The Conversation Your Executor Needs to Have With You

If you've been appointed as executor in someone's will but haven't yet spoken with them about where things are, that conversation needs to happen now — not after they're gone and you're making emergency calls to county clerks trying to reconstruct the picture.

And if you're doing your own estate planning in West Virginia, the most valuable thing you can do for the person who will serve as your executor is to have that conversation with them explicitly: here is where my documents are, here is who my attorney is, here is what I own that isn't obvious, here is what I owe.

The West Virginia Final Tax & Estate Tax Guide is designed for the person sitting where your executor will sit — navigating the county system, managing the forms, and trying to get this right without spending thousands on professional fees they may not need. It walks through the Small Estate Act changes, the ET 6.01 and ET 6.02 forms, Medicaid recovery rules, mineral rights administration, and the full timeline from death to final discharge.

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