A West Virginia small estate affidavit allows the heirs of a recently deceased person (the “decedent”) a means to collect their assets while avoiding a potentially long and arduous probate process. The form is generally referred to as the Affidavit for Small Estate and must be accompanied by a copy of the death certificate and a copy of the will (if any). Any successor may file this form with the county clerk’s office; a successor is an individual entitled to the property of the decedent with the exception of creditors.
This affidavit may be used to collect probate assets exclusively, meaning assets owned by the decedent and the decedent alone. Assets such as personal vehicles or jewelry are examples of probate assets, whereas non-probate assets might include joint bank accounts or co-owned real estate.
- Statute: §44-1A-2
- Maximum Estate Value (§44-1A-2(a)(5) & §44-1A-2(a)(6)): $50,000 in personal property; $100,000 in real property.
- Mandatory Waiting Period (§44-1A-2(a)(7)):
- Thirty (30) days if the affiant is the nominated executor or personal representative.
- Sixty (60) days if the affiant is not nominated as executor or personal representative.
- Where to File (§ 44-1A-2(c)): County Clerk’s Office
How to File (3 Steps)
The Affidavit for Small Estate may be used if the following applies:
- The decedent’s estate consists of small assets with a total market value not exceeding $50,000 and real estate valued at $100,000 or less.
- If there is a will and the successor is the executor or personal representative, at least thirty (30) days have passed since the decedent’s death.
- If there is no will, or if there is a will but the successor is neither the executor nor the personal representative, at least sixty (60) days have passed since the decedent’s death.
- The original will (if any) and death certificate are attached to the affidavit.
If the above-mentioned requirements have been met, the successor may complete and file the Affidavit for Small Estate with the County Clerk’s Office along with the original will, death certificate, and filing fees. The clerk of the county commission, or the fiduciary supervisor of the clerk, will review, inspect, record, and index the affidavit with the original will (if applicable). Any party with interest in the estate will have thirty (30) days after the filing of the affidavit to file a written objection with the clerk. The clerk with then pass on the objection to a fiduciary commissioner who will determine if the affidavit should be revoked.
Once the affidavit is approved, the clerk will issue a certification letter, and copies of the affidavit will be sent to all parties. The successor will then have six (6) months to administer the assets to the beneficiaries. In some cases, an extension may be granted with an application to the county clerk, but that extension may not be more than an additional six (6) months.