On July 1, 2021, a new law came into effect as a possible alternate to probating a decedent’s estate. It was named the “West Virginia Small Estate Act” and can be found in WV Code §44-1A-1 et seq.
Basically, this procedure is for the administration of the probate assets of a decedent’s estate: (1) if the probate personal property assets do not exceed a cumulative fair market value of $50,000.00, and/or (2) if the probate real estate interest(s) do not exceed a cumulative fair market value of $100,000.00. All the probate real estate assets must be situated in West Virginia.
The decedent must have been a resident of West Virginia, and the filing of the paperwork can only be done in the County where the decedent was a resident. The County Clerk is going to require a Death Certificate to see where the decedent is claimed to have resided prior to death.
The following scenarios dictate when a Small Estate process can begin:
- If the decedent died with a Last Will and Testament and the applicant is the person named in the Will as the personal representative (Executor/Executrix), then at least 30 days must have passed from the decedent’s date of death;
- If the decedent died with a Last Will and Testament but the applicant is NOT the person named in the Will as the personal representative (Executor/Executrix), then at least 60 days must have passed from the decedent’s date of death;
- If the decedent died without a Last Will and Testament (died intestate), then at least 60 days must have passed from the decedent’s date of death;
Remember, this procedure can be filed ONLY in one county, the county in which the decedent resided prior to death.
A difference between a Small Estate process and Probate, is that the applicant in a Small Estate process will only have authority over assets that are identified in the application form for a Small Estate; no other asset can be obtained. So, if the applicant forgot an asset or misidentified the asset, then the applicant will not be able to obtain the asset. The Small Estate application form cannot be amended. A new application must be filed and another filing fee will be charged.
In a Probate proceeding however, the applicant is given a “Letter of Administration” that allows the applicant (who is now called an Executor or Administrator) the authority to gather ALL ASSETS whether known or not known. If an error occurs in the filing of the Appraisement (document that identifies all assets of the decedent) during the probate process, an amended document can be filed without starting all over.
In a Small Estate proceeding, if there is a claim by a creditor, the creditor deals directly with the applicant and/or the recipients of the decedent’s funds; if the creditor is not satisfied, the creditor can file a suit in Magistrate Court or in Circuit Court; the County Clerk’s Office has nothing to do with claims by any party. In probate, all claims run through the County Clerk’s Office for resolution.
Currently, there is resistance by title insurance companies and by real estate attorneys in relying upon the “Small Estate Act” for the transfer of probate real estate interests from a decedent to beneficiaries/heirs. This resistance has caused many applicants, when probate real estate interest of a decedent exists, to proceed by the probate procedure rather than the Small Estate process.
This explanation is not meant to be exhaustive and you should contact an attorney for more details/assistance.