West Virginia Probate Process: A Step-by-Step Guide for Executors

Most executors named in a West Virginia will have never opened a probate estate before. They know they need to "do probate" but have almost no idea what that actually requires — what office to go to, what forms to file, what deadlines apply, or how long the entire process takes. The county clerk's office can hand you paperwork but is legally prohibited from telling you how to fill it out or what strategy to follow.

This guide explains the West Virginia probate process from the first visit to the courthouse through final discharge.

West Virginia's Decentralized Probate System

Unlike states with centralized probate courts, West Virginia probate is administered at the county level. The specific office you need is the County Clerk's office in the county where the decedent was a legal resident at the time of death. Each of West Virginia's 55 counties manages its own probate administration.

Day-to-day oversight of the estate is handled by the county's Fiduciary Supervisor, a staff position within the county commission that monitors filings, receives the estate appraisement, and processes final settlements. For complex or disputed estates, the county commission may refer the matter to a Fiduciary Commissioner — a local attorney appointed to act as a quasi-judicial officer who can hold hearings and issue recommended rulings.

Referral to a Fiduciary Commissioner significantly increases the cost and time of settling an estate. Understanding how to avoid unnecessary referrals is one of the most valuable things a first-time West Virginia executor can learn.

Step 1: Determine the Correct Probate Path

Before visiting the courthouse, you need to determine whether the estate qualifies for simplified small estate procedures or requires full formal probate.

As of July 9, 2025, West Virginia's Small Estate Act was amended to completely exclude any estate containing probate real property — including mineral rights, which are classified as real property — from the simplified small estate affidavit process. An estate only qualifies as a small estate if its total probate personal property (cash, vehicles, bank accounts, tangible items held solely by the decedent) does not exceed $50,000 in fair market value, and the decedent owned no probate real estate whatsoever.

If the estate includes a house, land, a hunting cabin, or even a fractional severed mineral interest titled in the decedent's name, full formal probate is mandatory regardless of property value. This change has caught many families off guard who expected to use the simplified process they used for a relative's estate before 2025.

If the estate is all personal property under $50,000 with no real estate, the small estate affidavit route is available and substantially faster. This article focuses on full formal probate.

Step 2: Open Probate at the County Courthouse

To initiate probate, the proposed executor (for testate estates with a will) or administrator (for intestate estates without a will) must appear in person at the County Clerk's office.

Bring with you:

• The original will (if one exists). West Virginia law requires the original will to be filed within 30 days of the decedent's death.
• A certified copy of the death certificate
• A list of all heirs and beneficiaries with their current addresses
• An estimate of the probate estate's value

At this appointment, you will complete the paperwork to be formally appointed as the personal representative and receive your Letters of Administration (or Letters Testamentary if there is a will). These letters are the document that grants you legal authority to act on behalf of the estate — banks, brokerages, and government agencies will require a certified copy before they will speak with you.

Surety Bond Requirements

West Virginia requires a surety bond in most estates to protect beneficiaries and creditors from executor misconduct. If the will explicitly waives the bond requirement, the executor may serve without one. In intestate estates, or when the will is silent, a bond is required.

For West Virginia residents, there are two options: purchasing a corporate surety bond through a licensed insurance agent, or using a "Property Bond" backed by a co-signer who owns real estate in West Virginia. That co-signer must provide a "Justification of Surety" form from the county clerk where their property is located.

Out-of-state executors cannot use a property bond under any circumstances. They must purchase a corporate surety bond.

Step 3: File the Appraisement and Nonprobate Inventory (90-Day Deadline)

Within 90 days of qualifying as personal representative, you must file two critical documents with the Fiduciary Supervisor:

ET 6.01 — Appraisement of the Estate. This form lists all probate assets — assets owned solely by the decedent with no automatic transfer mechanism. All items must be appraised at their fair market value as of the date of death. This includes real estate, vehicles, bank accounts in the decedent's name only, and personal property. For real estate and mineral rights, professional appraisals are generally advisable because the county uses the ET 6.01 valuations to calculate probate fees.

ET 6.02 — Nonprobate Inventory. This form lists all assets that transfer automatically outside of probate: jointly held accounts with survivorship rights, life insurance with named beneficiaries, IRAs and retirement accounts, TOD/POD accounts, and trust assets. The nonprobate inventory is a private document not available for public inspection, unlike the ET 6.01.

Missing the 90-day deadline is serious. It can result in penalties, delays in distributions, and — most significantly — referral of your estate to a Fiduciary Commissioner, which adds substantial time and cost to the process.

Step 4: Publish Notice of Administration and Manage Creditors

Once you file the ET 6.01, the County Clerk publishes a Notice of Administration in a local newspaper. This public notice alerts creditors that the estate has been opened and establishes the creditor claim period.

Creditors have 60 days from the date of the first publication to file formal claims against the estate. During this period, you should:

• Notify known creditors directly in writing
• Contact the West Virginia Department of Human Services (DHHR) if the decedent was 55 or older and received Medicaid-funded nursing home care or home and community-based waiver services
• Continue paying property taxes and maintaining estate assets
• Avoid distributing any assets to heirs until the creditor period closes

The DHHR holds priority status over most private creditors. If the decedent received Medicaid long-term care benefits, the state will file a formal proof of claim for reimbursement. This claim must be resolved before any distribution to heirs.

If a creditor's claim is disputed, the Fiduciary Supervisor cannot unilaterally reject it. Disputed claims must be referred to a Fiduciary Commissioner for a hearing, which is one of the primary triggers for formal referral to a Commissioner.

Step 5: Handle Tax Filings

Decedent's Final Income Tax Return (Form IT-140). The executor must file the decedent's final West Virginia Personal Income Tax Return for the year of death, due by April 15 of the following year. For joint returns, the surviving spouse may file a joint return for the year of death.

Fiduciary Income Tax Return (Form IT-141). If the estate holds income-producing assets during administration — rental property, mineral royalties, dividends — the estate is a separate taxable entity and must file Form IT-141 annually. The deadline is the 15th day of the fourth month following the close of the estate's taxable year.

Federal Estate Tax (Form 706). West Virginia has no state estate tax. The federal estate tax threshold is currently well over $13 million per individual, which exempts the vast majority of West Virginia estates. However, a surviving spouse may want to file Form 706 even without owing any tax in order to elect "portability" — transferring the deceased spouse's unused federal exemption amount to the surviving spouse, effectively doubling what can pass tax-free upon the surviving spouse's death.

Step 6: Transfer Real Estate and Other Assets

Real estate in West Virginia vests immediately in the heirs or beneficiaries at the moment of death. Probate documents this transfer in the public record and clears the property of any underlying creditor claims, but legal title passes at death rather than at the conclusion of probate.

Because of this immediate vesting, you technically cannot "hold up" a real estate sale simply because probate is open — but you also cannot clear the title for a buyer until the probate process has discharged creditor claims and the ET 6.01 appraisement has been processed. Practically speaking, most real estate transactions in West Virginia probate estates require waiting until at least the creditor claim period has expired and the state tax lien has been formally released.

To sell inherited real estate during probate, the personal representative must have authority under the will to sell property, or obtain a court order permitting the sale. The proceeds go into the estate account and are subject to estate debts and taxes before distribution.

Step 7: Close the Estate

Once all debts, taxes, and administrative expenses have been paid, West Virginia provides two paths to closing:

Short Form Settlement. Available once the 60-day creditor period has expired. The executor files an affidavit confirming that no known unpaid claims exist, along with waivers signed by each beneficiary and distributee. If accepted without contest, the Fiduciary Supervisor records the settlement and the County Commission issues an order discharging the executor.

Long Form Settlement. Required when disputes exist, when beneficiaries refuse to sign waivers, or when the estate is complex. This involves a detailed, line-by-line accounting of all receipts, disbursements, and distributions reviewed by the Fiduciary Supervisor or Commissioner before approval.

Probating a Will vs. Dying Without a Will

The process is the same whether or not the decedent left a will — you file at the county clerk's office, take an oath, get a bond, and follow the same timeline. The differences are:

With a will (testate estate): The will must be filed within 30 days of death. The will names the executor and specifies who receives the assets. West Virginia recognizes both formal witnessed wills and handwritten (holographic) wills.

Without a will (intestate estate): West Virginia's intestate succession laws determine who inherits. Generally, the surviving spouse and children are the primary heirs. The court will appoint an administrator, typically the next of kin who volunteers to serve.

The Guide That Fills in What the County Clerk Cannot Tell You

The Fiduciary Supervisor's job is to receive your filings and monitor compliance — not to advise you. County clerks are strictly prohibited by law from providing legal guidance on how to value assets, classify complex property interests, or determine probate strategy.

The West Virginia Final Tax & Estate Tax Guide provides the sequential, plain-English instructions that translate the ET 6.01 and ET 6.02 forms into actionable steps, explains how to correctly classify and value mineral rights, and walks you through the entire process from the day of qualification to final discharge — without paying attorney rates for administrative tasks you can handle yourself.

See more West Virginia guides →