Probate in West Virginia: small estates, no will, skipping court

Updated 2026-10-18

The short answer

In West Virginia, a small estate affidavit works if the probate personal estate is $50,000 or less and the person owned no probate real estate. The wait is 30 days for the named executor, 60 for others. Estates appraised at $200,000 or less are usually settled by the county clerk. West Virginia has no estate or inheritance tax.

When someone dies in West Virginia, the family's first question is usually practical. Do we have to go to court, and how long will it take?

In West Virginia, probate doesn't run through a probate court at all. It runs through the county commission and its clerk. Small estates can use an affidavit, mid-sized estates have a short path, and a deed can pass a house with no probate. This page covers each one, plus who inherits if there is no will. It is part of our estate planning guides for every state. If the word is new, start with what probate is.

Can my family use a small estate affidavit in West Virginia?

Yes, if the estate fits. Under the West Virginia Small Estate Act, a successor can settle the estate by affidavit, with no personal representative and no bond (W. Va. Code 44-1A-2). All of these must be true:

The person died living in West Virginia.
They owned no probate real estate, and no interest in probate real estate.
The entire probate personal estate is worth $50,000 or less, at fair market value on the date of death.

The real estate rule is new. Since July 9, 2025, any probate real estate rules out the affidavit (Enrolled HB 2867, 2025). Older articles and some county forms still describe a real estate allowance, so go by the current law.

A house that passes by a transfer on death deed, or that was held in a trust, isn't probate property.

The waiting period depends on who signs:

Who signs the affidavit	Earliest date
The executor named in the will	30 days after death
Anyone else (if the named executor hasn't filed one)	60 days after death

The affidavit is recorded with the clerk of the county commission, which issues a certificate and authorization (W. Va. Code 44-1A-3). Banks and others holding assets must then pay or deliver them to the successor. The successor pays known creditors first, then distributes what is left.

Who inherits if there's no will?

West Virginia's intestacy law decides (W. Va. Code 42-1-3).

A surviving spouse takes:

Everything, if there are no descendants, or if all the descendants are also the spouse's and the spouse has no other descendants.
Three-fifths, if all the descendants are also the spouse's but the spouse has children from someone else.
One-half, if any of the descendants are not the spouse's.

Anything that doesn't pass to a spouse goes in this order (W. Va. Code 42-1-3a):

Descendants, by representation.
Parents equally, or the surviving parent.
The parents' descendants: brothers, sisters, nieces and nephews.
Half to the father's side and half to the mother's side: grandparents or their descendants.

Friends never appear on this list. If you want a friend, a charity or a favorite neighbor to receive anything, it has to be in a will or trust. Our post on dying without a will covers what happens when the list runs short.

Who serves as personal representative?

The executor named in the will serves. If there is no will, the county commission or its clerk appoints an administrator from the heirs who apply. A spouse is preferred first, then whichever other heirs the commission or clerk sees fit (W. Va. Code 44-1-4).

If no heir applies within 30 days after death, the commission or clerk may appoint a creditor or any other fit person.

Nonresidents face limits (W. Va. Code 44-5-3). As a general rule, a nonresident can't serve. The main exception is a nonresident named as executor in the will, who can qualify. There are narrower exceptions for administrators and out-of-state estates.

A nonresident must post a bond with a corporate surety, generally at least double the value of the personal assets. For a spouse, parent, sibling, descendant or sole beneficiary, the clerk sets the amount under the normal rules instead. A will can waive or limit bond for a named nonresident executor.

Is there a simpler path for mid-sized estates?

Yes. If the appraisement is $200,000 or less, not counting specifically devised real estate and nonprobate assets, the clerk settles the estate without sending it to a fiduciary commissioner (W. Va. Code 44-2-1). The same applies if there is a single competent beneficiary.

The exception is when, within 60 days, someone asks for a referral or an unpaid creditor files with good cause. Otherwise the personal representative files a waiver of final settlement or a short report, and the commission can confirm it and discharge them. Our post on the probate process walks through the steps, and how long probate takes covers timing.

How long do creditors have?

Within 30 days after the appraisement is filed, the clerk publishes a notice once a week for two weeks. Creditors must file within 60 days after the first publication (W. Va. Code 44-1-14a).

The personal representative must also mail or deliver the notice within 60 days to known creditors, the spouse, the beneficiaries or heirs, and any trustee of the person's trust.

How much is the personal representative paid?

West Virginia allows "reasonable compensation in the form of a commission on receipts or otherwise," plus reasonable expenses, including a bond (W. Va. Code 44-4-12). The statute sets no percentage. Our post on what an executor gets paid compares approaches.

Can my house skip probate?

Yes, with a transfer on death deed (W. Va. Code 36-12-5). What to know:

It must be signed like any recordable deed and say the transfer happens at your death.
It must be recorded with the clerk of the county commission where the property sits, before your death (W. Va. Code 36-12-9).
You can revoke it, even if it says otherwise. It takes the same mental capacity as a will.

With the small estate rule now shutting out any probate real estate, this deed matters more. A living trust is the other common way to keep a home out of court. West Virginia trusts are revocable unless they say otherwise (W. Va. Code 44D-6-602). Our posts on what a trustee does and how to avoid probate compare the options.

Will my heirs owe West Virginia estate or inheritance tax?

No. West Virginia's estate tax was tied to a federal credit that no longer exists for deaths after 2004, so no tax is due (W. Va. Code 11-11-3). The state tax department has said West Virginia does not impose an estate tax or an inheritance tax for those deaths (fiscal note, HB 2963, 2017).

Which path fits?

Situation	Likely path
Personal property of $50,000 or less, no probate real estate	Small estate affidavit after 30 or 60 days
House passed by a recorded transfer on death deed, small accounts	Deed for the house, affidavit for the rest
Everything held in a revocable living trust	Trustee settles it, no probate
Appraisement of $200,000 or less, or one competent beneficiary	Probate settled by the clerk, no fiduciary commissioner
Larger estate, or a dispute	Referral to a fiduciary commissioner

Here is a typical case, a composite. Shirley, 77, lived in Huntington and never married. Her house had a recorded transfer on death deed naming her niece. Her checking account and car came to about $30,000. Thirty days after she died, her niece, named executor in the will, filed the affidavit. The deed passed her the house.

Some people would rather not leave this to a niece in another state. A Kinly membership includes a will and revocable trust written for your state, and Trella Trust Company can be named in the roles you choose, first or as backup. If it steps in and does work, that work is charged by the hour, and you see the rates before anything starts.

Before death, the papers that matter most are your powers of attorney. See our West Virginia financial power of attorney guide and West Virginia medical power of attorney guide.

Common questions

What is the small estate limit in West Virginia?

The probate personal estate must be $50,000 or less, and the person must have owned no probate real estate. The named executor can file 30 days after death; anyone else waits 60 days.

Can a small estate affidavit be used if there is a house?

Not if the house is probate property. Since July 9, 2025, any probate real estate rules out the affidavit. A house passing by a transfer on death deed or a trust isn't probate property.

Can someone who lives in another state be executor in West Virginia?

Yes, if named as executor in the will. Other nonresidents face limits, and a nonresident must post a corporate surety bond unless the will waives or limits it.

How long do creditors have in West Virginia probate?

Sixty days after the clerk's notice is first published.

Sources

This page is general information, not legal or financial advice. Laws vary by state.

Keep reading

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