Who handles probate in West Virginia — a court or the county commission?

West Virginia probate is handled by the County Commission and its Clerk — not a separate probate court and not a circuit court. Each of West Virginia's 55 counties has a County Commission with a Clerk who accepts filings, records wills and affidavits, qualifies personal representatives, and issues Letters. Most counties also appoint a Fiduciary Supervisor and/or Fiduciary Commissioner who oversees estate administration: reviewing the Estate Appraisement, supervising the creditor-claim process, and approving the final settlement. This county-commission / fiduciary-supervisor system is distinct to West Virginia and is NOT the Uniform Probate Code (UPC) registrar model used in many other states. West Virginia probate is governed by WV Code Chapters 41 (Wills), 42 (Descent and Distribution), 43 (Dower) and 44 (Administration of Estates and Trusts).

How is the elective share calculated for a surviving spouse in West Virginia?

West Virginia does NOT use a flat one-third elective share. Under WV Code § 42-3-1, a surviving spouse may elect to take an elective-share percentage of the decedent's augmented estate on a sliding scale keyed to the length of the marriage: less than 1 year receives a supplemental amount only; 1 year is 3%; and the percentage rises with each additional year of marriage — 5 years is 15%, 10 years is 30% — up to 50% of the augmented estate at 15 years or more. In addition, if the spouse's share from various sources is less than $25,000, WV Code § 42-3-1(b) guarantees a supplemental elective-share amount bringing the spouse up to $25,000. The 'augmented estate' (WV Code § 42-3-2) includes both probate and certain non-probate transfers so the decedent cannot defeat the elective share through last-minute non-probate transfers.

What happens if there is no will in West Virginia (intestate succession)?

West Virginia's intestate descent and distribution law (WV Code § 42-1-3) sets the surviving spouse's share on three tiers. The spouse takes the ENTIRE intestate estate if the decedent left no descendants, or if all of the decedent's descendants are also the spouse's descendants and the spouse has no other descendants. The spouse takes THREE-FIFTHS (3/5) of the estate if all the decedent's descendants are joint but the surviving spouse has one or more descendants who are NOT the decedent's. The spouse takes ONE-HALF (1/2) of the estate if one or more of the decedent's descendants are NOT the surviving spouse's descendants. Whatever the spouse does not take passes to the decedent's descendants and other heirs under WV Code § 42-1-3a. This modernized scheme is more nuanced than a simple 100%-or-half rule.

Does West Virginia have a TOD deed for real estate and mineral rights?

Yes. West Virginia enacted the Uniform Real Property Transfer on Death Act (WV Code §§ 36-12-1 through 36-12-17), authorizing a transfer-on-death (TOD) deed that names beneficiaries who receive real property at death without probate. Sign, notarize, and record the deed with the Clerk of the County Commission before death; the deed is nontestamentary and fully revocable during the owner's life (WV Code §§ 36-12-6 and 36-12-7). Because no interest passes until death and the deed remains revocable, recording a TOD deed is exempt from West Virginia's real estate transfer excise tax. Critically for WV families, a TOD deed works for coal, oil and gas mineral interests as well as surface real estate, and because West Virginia limits Medicaid estate recovery to the probate estate, property that passes by TOD deed is generally outside Medicaid estate recovery. A TOD deed can only be revoked by recording a new instrument, not by a revocatory act on the deed itself (WV Code § 36-12-11).

How long do creditors have to file claims in West Virginia?

Creditors generally have 60 days from the first publication of the Notice to Creditors (a Class II legal advertisement published once a week for two successive weeks) to present their claims to the fiduciary or fiduciary supervisor (WV Code § 44-3A-4). This 60-day window is one of the shortest creditor periods in the United States — most states allow three to four months. For small estates handled by affidavit under WV Code § 44-1A, no newspaper publication is required at all. Where the estate appraisement shows a value of $200,000 or less, the estate may be settled by the county commission clerk without reference to a fiduciary commissioner unless a reference is requested within 60 days of first publication (WV Code § 44-2).

Does West Virginia have an estate tax or inheritance tax?

No to both. West Virginia has no state estate tax and no state inheritance tax (the inheritance tax was repealed effective for deaths after roughly 1985). Only the federal estate tax can apply, and only to estates exceeding the federal exemption (approximately $15 million per person in 2026), so the vast majority of West Virginia estates owe zero death-transfer tax. The decedent's final West Virginia personal income tax return (Form IT-140) must still be filed if the decedent had taxable income in the year of death, but there is no WV estate or inheritance tax return.

Are holographic (handwritten) wills valid in West Virginia?

Yes. Under WV Code § 41-1-3, a will that is wholly in the testator's own handwriting and signed by the testator is valid in West Virginia without any witnesses. These holographic wills are common in rural West Virginia. The entire dispositive portion must be in the testator's handwriting — a printed or typed form with handwritten fill-ins generally does not qualify as holographic. The county commission clerk or fiduciary supervisor may require affidavits from people familiar with the testator's handwriting to authenticate the will. Holographic wills are more vulnerable to challenge than attested wills; a self-proved witnessed will (signed before a notary with an attestation clause) is faster to probate.

What is West Virginia's non-probate inventory (Estate Appraisement) requirement?

West Virginia has a distinctive requirement: within 90 days of the personal representative's qualification, an Estate Appraisement must be filed with the county commission clerk or fiduciary supervisor, together with a completed non-probate inventory form that lists BOTH probate assets AND non-probate assets — life insurance, TOD/POD accounts, retirement accounts, and jointly-titled property (WV Code § 44-1-14). While non-probate assets are not subject to administration, West Virginia requires them to be disclosed for estate transparency and creditor-priority purposes. If the appraisement is not filed on time, the clerk must publish notice within 120 days of qualification, and a personal representative who refuses without reasonable cause commits a misdemeanor.

What happens to coal and mineral rights in West Virginia probate?

Coal, oil, and natural gas mineral interests are real property in West Virginia and follow the same probate rules as surface real estate. Mineral interests titled solely in the decedent's name go through full administration through the county commission, and a specialized energy appraiser is often needed to value them. The best probate-avoidance tools for WV mineral rights are a recorded TOD deed (WV Code §§ 36-12-1 et seq.), joint tenancy with right of survivorship, or a revocable living trust (WV Code Chapter 44D). Unprobated mineral interests create severe 'heir property' problems in coal and gas counties — fractional ownership spread across dozens or hundreds of heirs. West Virginia adopted the Uniform Partition of Heirs Property Act to give co-heirs additional rights in partition proceedings.

West Virginia Probate Guide 2026: County Commission, $50K Small Estate, TOD Deeds, Elective Share & All 55 Counties

Q: What is West Virginia's small estate affidavit process and dollar limit?

Under the West Virginia Small Estate Act (WV Code § 44-1A-2), a small estate may be administered by affidavit and without appointment of a personal representative when the decedent's entire personal probate estate has an aggregate fair market value of not more than $50,000 AND the decedent owned no probate real property (or interest in probate real property). The successor files the affidavit with the county commission clerk or fiduciary supervisor. If the successor is nominated as personal representative in the will, at least 30 days must have elapsed since death; for all other successors (including intestate heirs), at least 60 days must have elapsed. No bond, oath, or newspaper publication is required. The clerk records the affidavit and issues a certificate authorizing the successor to collect the small assets. If the estate includes solely-titled real estate, the small estate affidavit is not available and full administration (or a recorded TOD deed) is required.

1Overview — do I need probate in West Virginia?

West Virginia probate is governed by WV Code Chapters 41 (Wills), 42 (Descent & Distribution), 43 (Dower) and 44 (Administration of Estates and Trusts) — accessible at code.wvlegislature.gov. It is not a Uniform Probate Code state. Probate runs through the County Commission Clerk and the Fiduciary Supervisor/Commissioner in each of the 55 counties. The $50,000 Small Estate Act and recorded TOD deeds are the main ways to avoid full administration.

West Virginia Probate Decision Wizard

WV Code Chapters 41, 42, 44 (not UPC) · County Commission · ~60 seconds

Step 1 of 4

West Virginia's three main paths — recorded non-probate transfers, the Small Estate Act affidavit, and full administration:

Track	When available	Process	Typical time	Authority
TOD deed / JTWROS / Trust / Beneficiary designation	Recorded TOD deed, joint tenancy with survivorship, revocable trust, or POD/TOD accounts	No probate — file death cert with county commission clerk or institution	Days–weeks	WV Code §§ 36-12-1 et seq.
Small Estate Act affidavit	Personal probate property ≤ $50,000 and no probate real estate; 30/60-day wait; filed with county commission clerk	Affidavit to county clerk; no publication, bond, or oath required; certificate issued	3–8 weeks	WV Code § 44-1A-2
Full administration	Any solely-titled real estate or mineral interests; personal property over $50K; contested estates	County commission clerk qualifies PR; bond unless waived; Class II publication; 90-day appraisement; fiduciary supervisor final settlement	6–18 months	WV Code Chapter 44

WV probate goes through the County Commission Clerk and Fiduciary Supervisor — not a court

West Virginia's probate system is administered by the County Commission (and its Clerk), not a separate probate court or circuit court judge. Each of WV's 55 counties has a County Commission with a County Clerk who accepts filings, qualifies executors, records wills and affidavits, and issues Letters. Most counties also have a Fiduciary Supervisor and/or a Fiduciary Commissioner — appointed by the county commission — who reviews the Estate Appraisement, supervises the creditor-claim process, and approves the final settlement. This county-commission / fiduciary-supervisor structure is distinct to West Virginia and is not the UPC registrar model. Forms are county-specific — contact your county commission clerk. Find all WV county clerks at sos.wv.gov.

West Virginia probate at a glance

Topic	West Virginia rule	Authority
Governing law	WV Code Chapters 41 (Wills), 42 (Descent & Distribution), 43 (Dower), 44 (Administration); NOT the UPC	WV Code Ch. 44
Who administers probate	County Commission Clerk qualifies the PR; Fiduciary Supervisor/Commissioner oversees appraisement, claims, and final settlement	WV Code § 44-1-1 et seq.; § 44-3A-1 et seq.
Number of counties	55 County Commissions	WV SOS clerk directory
Small estate — affidavit	Personal probate assets ≤ $50,000 aggregate FMV and NO probate real property; 30-day wait (nominated PR) / 60-day wait (all others); no bond, oath, or publication	WV Code § 44-1A-2
Payment of small assets	Certificate authorizes successor to collect assets from banks, DMV, and other holders; authority lasts 6 months (extendable once)	WV Code § 44-1A-3
Small real estate transfer	Solely-titled real estate cannot use the § 44-1A affidavit; a separate heirs' affidavit may address qualifying real property — confirm eligibility with the county clerk	WV Code § 41-5-18
Full administration	Required for any solely-titled real estate or minerals, or personal property over $50K; bond unless waived; publication; final settlement	WV Code § 44-1-1 et seq.
Bond	Required of the PR unless the will waives it or beneficiaries consent; property bond or corporate surety	WV Code § 44-1-8
Estate Appraisement + non-probate inventory	Filed within 90 days of qualification; lists BOTH probate AND non-probate assets; late filing triggers 120-day clerk publication	WV Code § 44-1-14
Notice to creditors	Class II legal advertisement — once a week for two successive weeks	WV Code § 44-3A-3; § 59-3-2
Creditor claim period	60 days from first Class II publication — one of the shortest in the US	WV Code § 44-3A-4
Settlement without commissioner reference	If appraisement ≤ $200,000, the clerk may settle without reference to a fiduciary commissioner unless a reference is requested within 60 days	WV Code § 44-2
Intestate — spouse share	Entire estate / three-fifths / one-half depending on whose descendants survive (three-tier)	WV Code § 42-1-3
Intestate — other heirs	Descendants, then parents, then siblings and more remote kin	WV Code § 42-1-3a
Elective share (surviving spouse)	Sliding scale 3% (1 yr) → 50% (15+ yrs) of the augmented estate; $25,000 supplemental minimum — NOT a flat one-third	WV Code § 42-3-1
Augmented estate	Includes probate estate plus certain non-probate transfers, to prevent defeating the elective share	WV Code § 42-3-2
Holographic wills	Valid — wholly in the testator's handwriting and signed; no witnesses required	WV Code § 41-1-3
TOD deed (real property + minerals)	Uniform Real Property Transfer on Death Act; nontestamentary; revocable; excise-tax exempt on recording	WV Code §§ 36-12-1 to 36-12-17
TOD deed revocation	Only by recording a new instrument; a revocatory act on the deed itself is not permitted	WV Code § 36-12-11
Medicaid estate recovery	Limited to the probate estate — TOD-deed property generally passes outside recovery	WV DHHR estate recovery program
Mineral interests (coal/oil/gas)	Real property — same probate rules as surface land; TOD deed, JTWROS, or trust avoids probate	WV Code Ch. 36 & 37
Revocable living trust	Governed by the WV Uniform Trust Code; assets titled in trust avoid probate entirely	WV Code Chapter 44D
WV estate tax	None	—
WV inheritance tax	None (repealed, deaths after ~1985)	—
Final WV income tax	Decedent's final Form IT-140 due if taxable income in year of death	WV State Tax Dept.
Filing fee	Approximately $56 testate / $44 intestate (varies by county — verify with the county commission clerk)	County fee schedule

2Can I avoid probate? TOD deeds, mineral rights, and Medicaid protection

West Virginia's TOD deed is especially powerful for coal-country families — it works for mineral interests as well as surface real estate, is exempt from WV's real estate transfer excise tax on recording, and (because WV limits estate recovery to the probate estate) generally keeps the property outside Medicaid estate recovery.

TOD deed — §§ 36-12-1 et seq.

Sign, notarize, record with the county commission clerk before death. Nontestamentary and fully revocable during life (§§ 36-12-6, 36-12-7).

Reaches coal & gas minerals

Mineral interests are real property in WV — a TOD deed can name beneficiaries for coal, oil, and gas the same way it does for a house.

Excise-tax exempt on recording

Because no interest passes until death and the deed stays revocable, recording a TOD deed is exempt from WV's real estate transfer excise tax.

Outside Medicaid estate recovery

WV limits Medicaid estate recovery to the probate estate, so a home passing by TOD deed is generally not reachable by DHHR recovery.

Transfer-on-Death (TOD) Deed — WV Code §§ 36-12-1 through 36-12-17. West Virginia enacted the Uniform Real Property Transfer on Death Act, letting owners name beneficiaries who receive real estate (including mineral interests) at death without any probate. Sign, notarize, and record the deed with the Clerk of the County Commission in the county where the property is located. The deed is nontestamentary (WV Code § 36-12-7) and fully revocable during the owner's life (WV Code § 36-12-6) — the owner keeps complete ownership and control, pays the taxes, and can sell or mortgage the property. At death the beneficiary records a certified death certificate with the county commission clerk — no probate, no attorney required.

Key WV TOD deed features: (1) recording is exempt from WV's real estate transfer excise tax because no interest passes during the transferor's lifetime and the deed remains revocable; (2) TOD-deed property is generally outside WV Medicaid estate recovery, because West Virginia recovers only against the probate estate — a significant advantage for families concerned about long-term-care costs; (3) a TOD deed cannot be revoked by a will or by a revocatory act on the deed itself — revocation requires recording a new instrument (WV Code § 36-12-11); (4) if the sole named beneficiary predeceases the owner and no alternate is named, the gift lapses and the property falls back into the estate.

TOD deeds for coal, oil, and gas mineral rights — the WV difference

West Virginia sits atop the Appalachian coal region and the Marcellus Shale — two of the most energy-productive geological formations in the world. Many WV families own mineral interests (coal, oil, gas) that are separate from their surface real estate — a "split estate." These mineral interests are real property in West Virginia and follow the same probate rules as surface land.

A WV TOD deed can name beneficiaries for mineral interests just as it can for a house. This matters most in Mingo, McDowell, Logan, Wyoming, and Boone counties (coal country) and in Wetzel, Marshall, Tyler, and Doddridge counties (Marcellus gas). Without a TOD deed, mineral interests in a decedent's name alone go through full WV administration — inventory, publication, and fiduciary supervisor approval before transfer.

Heir property / fractional interests are a serious problem in WV coal and timber country. When mineral interests pass through multiple generations without formal probate, dozens — sometimes hundreds — of heirs each own a small fraction, and energy companies cannot lease or develop without broad consent. West Virginia adopted the Uniform Partition of Heirs Property Act to give co-heirs stronger rights in partition proceedings. The WV Land Reutilization Corporation at wvlrc.org helps families clear heir-property title.

Mineral Rights Scenario — Mingo County (Coal Country)

Ruby owns 40 acres of surface land in Mingo County (value $85,000) and a separate coal royalty interest (value $180,000) — both solely in her name, with no TOD deed. When Ruby dies, both require full WV administration: county commission clerk qualification, fiduciary supervisor oversight, published Class II Notice to Creditors (2 weeks), a 90-day Estate Appraisement, and a final settlement. The coal company's royalty payments are typically suspended until the ownership transfer is confirmed — often 9–15 months and thousands of dollars in administration costs.

If Ruby had recorded a TOD deed for both the surface land AND the coal royalty interest naming her daughter Lisa, Lisa could record the death certificate with the Mingo County Commission Clerk. Title clears in weeks, royalty payments resume, and no probate is needed for either property.

WV TOD-deed property generally passes outside Medicaid estate recovery

If a West Virginia resident received Medicaid benefits (including long-term care) during life, WV DHHR can seek reimbursement from the probate estate after death. Because West Virginia does not make non-probate transfers available for estate recovery, property that passes by a recorded TOD deed is generally beyond DHHR's reach — making TOD deeds a valuable planning tool for elderly homeowners and mineral-rights owners. Property in a properly structured revocable trust (WV Code Chapter 44D) may also have planning advantages. Consult a WV elder-law attorney at wvbar.org; free legal help at legalaidwv.org.

3Does West Virginia's $50,000 Small Estate Act apply?

The West Virginia Small Estate Act (WV Code § 44-1A-2) lets a successor administer a small estate by affidavit — no personal representative, no bond, no oath, and no newspaper publication — when the decedent's personal probate assets total $50,000 or less and the decedent owned no probate real property.

WV Small Estate Act Qualifier

WV Code § 44-1A-2 · $50K personal property · no probate real estate · 30/60-day wait

Total personal probate property value ($)

Real estate or minerals in decedent's name alone (no TOD/JTWROS/trust)?

Under WV Code § 44-1A-2, a small estate may be administered by affidavit only when the decedent owned no probate real property (or interest in probate real property) and the decedent's entire personal probate estate has an aggregate fair market value of not more than $50,000. The successor files the affidavit — on the statutory form set out in § 44-1A-2(e) — with the county commission clerk or fiduciary supervisor.

Wait periods (WV Code § 44-1A-2(b)(6)): if the successor is nominated as personal representative in the will, at least 30 days must have elapsed since death; for all other successors, including intestate heirs, at least 60 days must have elapsed. No bond, security, or oath is required (WV Code § 44-1A-2(d)). The clerk reviews and records the affidavit and issues a certificate and authorization of small estate, letting the successor collect the small assets from banks, the DMV, and other holders. The authority lasts six months and can be extended once for good cause (WV Code § 44-1A-2(h)).

If there is solely-titled real estate, the § 44-1A affidavit is not available and full administration (or a recorded TOD deed made during life) is required. A separate heirs'-affidavit process under WV Code § 41-5-18 may address qualifying real property in some cases — confirm eligibility with the county commission clerk before relying on it.

Objection window — 30 days after the affidavit is mailed

After the clerk records the affidavit, it is mailed to the nominated PR, beneficiaries, or heirs. If any interested person files a written objection on good grounds within 30 days, the clerk refers it to a fiduciary commissioner, who can revoke the certificate and require full administration (WV Code § 44-1A-2(g)). If the assets turn out to exceed $50,000, the certificate is rescinded and regular probate must be commenced (WV Code § 44-1A-2(i)).

4No will? Intestate succession & the surviving-spouse elective share

West Virginia's intestate spouse share (WV Code § 42-1-3) has three tiers — not a simple 100%-or-half rule — and the elective share (WV Code § 42-3-1) is a sliding scale of the augmented estate keyed to years of marriage, not a flat one-third.

Intestate share of the surviving spouse — WV Code § 42-1-3

Family situation	Surviving spouse receives	Rest goes to
No descendants of the decedent survive	Entire intestate estate (100%)	—
All decedent's descendants are also the spouse's, and spouse has no other descendants	Entire intestate estate (100%)	—
All decedent's descendants are joint, BUT spouse has other descendants who are not the decedent's	Three-fifths (3/5) of the estate	Decedent's descendants share the remaining 2/5
One or more of the decedent's descendants are NOT the spouse's	One-half (1/2) of the estate	Decedent's descendants share the remaining 1/2
No surviving spouse; descendants survive	—	Descendants, per WV Code § 42-1-3a (per capita at each generation)
No spouse, no descendants	—	Parents, then siblings, then more remote kin (§ 42-1-3a)

The often-missed three-fifths tier

Many summaries of WV intestacy state only that the spouse takes "everything or half." That is incomplete. WV Code § 42-1-3(b) creates a distinct three-fifths share for the common blended-family case where all of the decedent's children are also the surviving spouse's, but the surviving spouse has one or more children from another relationship. The one-half tier under § 42-1-3(c) applies only when one or more of the decedent's descendants are not the surviving spouse's.

Elective share — the sliding scale (WV Code § 42-3-1)

A surviving spouse who is disinherited or left less than their statutory minimum may elect against the will (or the intestate share) to take an elective-share percentage of the augmented estate (WV Code § 42-3-2), determined by how long the couple was married. West Virginia does not use a flat one-third; the percentage climbs with the length of the marriage:

Length of marriage	Elective-share percentage of augmented estate
Less than 1 year	Supplemental amount only
1 year but less than 2	3%
2 – 3 years	6%
3 – 4 years	9%
4 – 5 years	12%
5 – 6 years	15%
6 – 7 years	18%
7 – 8 years	21%
8 – 9 years	24%
9 – 10 years	27%
10 – 11 years	30%
11 – 12 years	34%
12 – 13 years	38%
13 – 14 years	42%
14 – 15 years	46%
15 years or more	50%

WV Elective-Share Estimator

WV Code § 42-3-1 · sliding scale by years married · $25,000 supplemental minimum

Augmented estate value ($)

Full years married

Under WV Code § 42-3-1(b), if the spouse's share from the listed sources is less than $25,000, a supplemental elective-share amount brings the spouse up to $25,000. The election must be made within the statutory period — contact a WV estate attorney promptly. This estimator is a simplified illustration and does not account for prior gifts, the exact composition of the augmented estate, or amounts the spouse already receives.

5How long will West Virginia probate take?

WV's 60-day creditor window is among the shortest in the US — a genuine advantage for simple estates that publish immediately. Full administration typically takes 6–18 months depending on complexity, mineral appraisals, and disputes.

30/60 days small-estate wait (§ 44-1A-2)

60 days creditor window from first Class II publication (§ 44-3A-4)

90 days appraisement deadline from qualification (§ 44-1-14)

6–18 months typical full administration

Day 1

Death occurs · File will with County Commission Clerk · Qualify as executor

The original will is submitted to the County Commission Clerk in the county where the decedent was domiciled. The named executor qualifies before the clerk, taking an oath. Order certified death certificates from WV Vital Registration. The clerk issues Letters Testamentary (testate) or Letters of Administration (intestate). Filing fees run roughly $56 testate / $44 intestate — among the lowest in the US (verify with your county).

County Commission Clerk

Day 1–14

Post bond (unless waived) · Receive Letters from clerk

Unless the will waives it, the executor posts a bond (WV Code § 44-1-8): a property bond (a WV resident with WV real estate signs as surety) or a corporate surety bond (typically 0.5%–1% of estate value per year). Once bond is posted and the oath taken, the clerk issues Letters authorizing the executor to access accounts and manage the estate. Order extra certified copies.

Bond unless waived (§ 44-1-8)

Week 1–2

Publish Class II Notice to Creditors · 60-day clock starts

Publish a Class II legal advertisement — a Notice to Creditors — once a week for two successive weeks in a newspaper of general circulation. The 60-day creditor claim period runs from first publication (WV Code § 44-3A-4) — one of the shortest windows in the US. Also mail direct written notice to known creditors, and notify WV DHHR if the decedent received Medicaid. Small-estate affidavit track: no publication required.

60-day clock starts (§ 44-3A-4)

Within 90 days

File Estate Appraisement + non-probate inventory (ALL assets)

Within 90 days of qualification, file the verified Estate Appraisement together with the non-probate inventory form — listing both probate assets AND non-probate assets (life insurance, POD/TOD accounts, retirement accounts, jointly-held property) (WV Code § 44-1-14). Late filing triggers a clerk publication within 120 days, and unexcused refusal is a misdemeanor. For coal and gas interests, use a specialized energy appraiser.

Probate AND non-probate (§ 44-1-14)

Month 2–6

60-day creditor period closes · Pay valid claims · File tax returns

After 60 days from first publication, respond to and pay valid claims in statutory priority order. WV has no state estate tax and no state inheritance tax. File the decedent's final WV income tax return (Form IT-140) at tax.wv.gov and the federal Form 1040. A federal Form 706 is required only if the gross estate exceeds the federal exemption (~$15 million in 2026).

No WV estate tax

Month 6–18

Final Settlement · Fiduciary Supervisor review · Distribution

File a Final Settlement showing all receipts, disbursements, and proposed distributions. The fiduciary supervisor/commissioner reviews and approves (beneficiaries can object). Where the appraisement is $200,000 or less, the clerk may settle without a fiduciary-commissioner reference unless one is requested within 60 days (WV Code § 44-2). Once approved, distribute per the will or WV intestate succession (WV Code § 42-1-3), record deeds of distribution, and obtain receipts; the executor is then discharged.

Fiduciary Supervisor approves

Calculate your WV creditor & filing deadlines

WV Deadline Calculator

§ 44-3A-4 (60-day creditors) · § 44-1-14 (90-day appraisement) · § 44-1A-2 (small estate wait)

Date of death

PR qualification date (if full administration)

First Class II publication date

6Paperwork & cost — West Virginia probate forms and fees

WV probate forms are county-specific — contact the County Commission Clerk in the relevant county. Filing fees are among the lowest in the US; the main costs are attorney fees, the surety bond, and (for coal/gas estates) specialist mineral appraisals.

Document	Purpose	Source / authority
Small Estate Affidavit (§ 44-1A-2)	Personal probate property ≤ $50K, no probate real estate; 30/60-day wait; no publication or bond	County Commission Clerk; § 44-1A-2; Legal Aid WV
Petition to Qualify (testate/intestate)	Opens the estate; executor/administrator qualifies before the clerk, takes oath, posts bond	County Commission Clerk; WV Code § 44-1-1 et seq.
Fiduciary Bond	Property bond or corporate surety unless waived by the will or beneficiaries	WV Code § 44-1-8
Estate Appraisement + Non-Probate Inventory	Lists ALL assets (probate and non-probate) at FMV; filed within 90 days of qualification	§ 44-1-14 / Fiduciary Supervisor
Class II Notice to Creditors	Published once a week for 2 successive weeks; starts the 60-day claim window; not required for small estates	County newspaper; WV Code § 44-3A-3/4
Final Settlement	Shows all transactions; reviewed and approved by the fiduciary supervisor before distribution	County Commission / Fiduciary Supervisor; WV Code § 44-2/§ 44-4
TOD Deed (§§ 36-12-1 et seq.)	Transfers real estate or minerals at death without probate; recorded before death; excise-tax exempt; Medicaid-protected	County Commission Clerk; § 36-12
WV Form IT-140	Decedent's final WV personal income tax return (WV has a state income tax)	WV State Tax Department

Cost item	Typical amount	Notes
County Commission filing fee	~$56 testate / ~$44 intestate	Among the lowest in the US; varies by county — verify with your county commission clerk
Surety bond	0.5%–1% of estate value per year	Required unless waived; property bond available (WV Code § 44-1-8)
Attorney fees — full administration	$2,500–$5,000	No statutory schedule; "reasonable" standard; ~$175–$300/hr typical
Attorney fees — complex estates	$5,000–$12,000+	Mineral interests, many heirs, disputes, heir-property title clearing
Newspaper publication (Class II)	$50–$150	Two weekly publications; small estates: $0 (no publication)
Coal/gas mineral appraisal	$1,500–$6,000+	Specialized energy appraisers for Appalachian coal and Marcellus gas
WV estate tax	$0	West Virginia has no state estate tax
WV inheritance tax	$0	Repealed (deaths after ~1985)

WV Code: code.wvlegislature.gov/44 · WV Bar: wvbar.org · Legal Aid WV: legalaidwv.org · County Clerks: sos.wv.gov · Vital Records: dhhr.wv.gov/vs

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7Which of West Virginia's 55 county commissions handles my case?

West Virginia has 55 counties — each with a County Commission Clerk handling probate. File in the county where the decedent was domiciled at death. For real estate in another county, the deed of distribution is recorded with that county's commission clerk. All WV county clerks: sos.wv.gov.

8West Virginia probate — frequently asked questions

Who actually runs probate in WV — a judge, or the county commission?

The County Commission and its Clerk run probate in West Virginia — not a probate court and not a circuit judge. The clerk qualifies the executor or administrator, records the will and affidavits, and issues Letters. A Fiduciary Supervisor and/or Fiduciary Commissioner (appointed by the county commission) reviews the Estate Appraisement, supervises the creditor-claim process, and approves the Final Settlement. This is different from UPC states that use a court registrar, and different from states with a dedicated probate court. Your county commission clerk can tell you who the fiduciary supervisor is in your county. Directory: sos.wv.gov.

The estate is a $35,000 bank account and a $25,000 car. Can I use the small-estate affidavit?

It depends on what is actually a probate asset. The Small Estate Act (WV Code § 44-1A-2) requires the total personal probate estate to be $50,000 or less and requires that there be no probate real estate. A $35,000 bank account plus a $25,000 car is $60,000 — over the limit if both are probate assets. But if the bank account has a POD (payable-on-death) beneficiary, it passes outside probate and only the $25,000 car remains, which is well within the $50,000 limit. Check the account's POD/TOD designation first. If the car is the only probate asset and there is no solely-titled real estate, you can file the § 44-1A affidavit with the county commission clerk — no publication, no bond, no lawyer required. Free help: legalaidwv.org.

My spouse died. Is my elective share really just one-third?

No — West Virginia does not use a flat one-third elective share. Under WV Code § 42-3-1, the elective share is a percentage of the augmented estate on a sliding scale keyed to the length of your marriage: 3% at 1 year, rising with each year (15% at 5 years, 30% at 10 years) up to 50% at 15 years or more. Marriages under a year receive a supplemental amount only. Separately, WV Code § 42-3-1(b) guarantees a supplemental elective-share amount so that the spouse receives at least $25,000. The augmented estate (WV Code § 42-3-2) includes probate assets plus certain non-probate transfers so a spouse cannot be defeated by last-minute transfers. The election must be filed within the statutory period — act promptly and consult a WV estate attorney at wvbar.org.

There's no will. My late spouse and I each have kids from before we married. Who inherits?

This is the classic blended-family case, and WV Code § 42-1-3 has a specific answer with three tiers. If one or more of the decedent's children are not also your children, you (the surviving spouse) take one-half of the intestate estate and the decedent's descendants share the other half (§ 42-1-3(c)). If instead all of the decedent's children were also yours, but you have children from another relationship who are not the decedent's, you take three-fifths (§ 42-1-3(b)). Only where there are no descendants outside the marriage does the spouse take the entire estate (§ 42-1-3(a)). Because most "who inherits" summaries skip the three-fifths tier, confirm your exact situation with the county commission clerk or a WV attorney.

My grandfather left a handwritten will — is it valid?

Likely yes. Under WV Code § 41-1-3, a will wholly in the testator's own handwriting and signed is valid in West Virginia with no witnesses. Bring the original to the County Commission Clerk in the county where he lived — do not alter or "clean up" the document. The entire dispositive portion must be in his handwriting (a printed form with handwritten fill-ins generally does not qualify), and the clerk may require affidavits from people who know his handwriting to authenticate it. Even a brief note like "I leave my farm to my son James," if entirely handwritten and signed, may qualify. Holographic wills are more vulnerable to challenge than attested wills, so consider a WV probate attorney for anything contested. Free help: legalaidwv.org.

I inherited a fractional interest in coal rights my great-grandmother owned. What now?

This is one of the most common inheritance situations in WV coal country. If your great-grandmother's estate was never probated, title to her mineral interests may still be in her name or split among many heirs through generations of intestate succession. Steps: (1) Hire a title-search company familiar with WV mineral rights to search the county land records. (2) If there were unprobated estates in the chain, those may need to be probated, even decades later. (3) Check whether unclaimed royalties are held by the WV State Treasurer at unclaimedproperty.wv.gov. (4) Consult a WV attorney experienced in mineral rights and heir property — the Uniform Partition of Heirs Property Act gives co-heirs additional rights. Legal Aid of WV can help.

My mother had Medicaid long-term care for years. Will DHHR take her house?

WV DHHR can file an estate recovery claim for Medicaid long-term-care benefits paid during your mother's life — but only against her probate estate. If the home was solely in her name with no TOD deed, it is a probate asset and DHHR can claim against it, potentially forcing a sale. However, West Virginia limits estate recovery to the probate estate, so if she had recorded a TOD deed naming you, the home would have passed to you outside probate and generally beyond DHHR's reach. The planning lesson: record a TOD deed for the family home while the parent is living and before long-term care is needed. Find a WV elder-law attorney at wvbar.org.

Why do I have to list life insurance and POD accounts if they skip probate?

West Virginia is unusual: within 90 days of qualification, the Estate Appraisement must be filed together with a non-probate inventory listing both probate and non-probate assets — life insurance, TOD/POD accounts, retirement accounts, and jointly-held property (WV Code § 44-1-14). Most states only require disclosure of probate assets. The non-probate assets are not subjected to administration; the disclosure gives the fiduciary supervisor a complete picture of the estate for creditor-priority and transparency purposes. If the appraisement isn't filed on time, the clerk must publish notice within 120 days, and an unexcused refusal is a misdemeanor — so file it promptly.

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