Dear Editor:
Many shrug their shoulders about estate planning. They feel they don’t have an estate because they aren’t wealthy. They also think probate, whatever that is, sounds too complex.
An estate consists of all the property (real estate, personal property, financial accounts, etc.) owned on the day a person dies. Whether such property is worth $10 billion or $10, it is still an estate.
But advance planning can eliminate or lessen the need for estate administration by naming a recipient for an account, property or asset through payable on death or transfer on death arrangements.
The age-old probate process involves the legal steps needed to resolve who will become the next owner(s) of the estate’s assets and to pay any debts.
An estate is likely to include both probate property and nonprobate property.
Probate property, also referred to as the probate estate, is controlled by the deceased person’s will or by state intestacy law at WV Code sec. 42-1-3 and -3A to determine which family members will inherit when there is no will.
Nonprobate property is governed by deeds, account forms, contracts, etc. that determine what happens next with that property or asset.
Probate property and nonprobate property are broken down into real property and personal property categories.
The probate process starts with listing the estate’s assets, property and debts, then formally appointing a person or financial institution at the courthouse to handle the process, and later distributing the remaining assets as appropriate. If no will is available, the legal requirement is to distribute the assets to family members under the state intestacy law.
A relatively new law, WV Code sec. 44-1A-1 et seq., deals with small estates, providing simpler procedures and lower probate costs. Also, no final report to close the estate; the initial report is all that’s required to be filed.
There are certain requirements for the new probate procedures, including that the person handling the estate must be a state resident. There are also property limits and time restrictions.
The first consideration is whether the deceased person owned a total of $50,000 or less of personal property with no specific beneficiary listed for the property, such as financial accounts, vehicles, furniture, jewelry and life insurance. That makes each includible in the probate estate for appropriate handling.
When a beneficiary is listed for the insurance or account, it is nonprobate property and is not included in the personal property total for probate purposes. Claiming those funds involves contacting the appropriate company.
Next is whether the decedent owned $100,000 or less in real estate in West Virginia. The real estate must be owned solely by the deceased individual or is otherwise subject to the probate process to transfer ownership.
For example, real estate owned with another person as joint tenants with rights of survivorship is nonprobate real estate after one of the owners dies and will not be included in the $100,000 calculation.
To open a small estate, a special form called the Affidavit for Small Estate must be filled out. It lists the real and personal probate property (nonprobate property is not included) and the beneficiaries of the estate. Some counties have such affidavits available online while others provide them at the courthouse.
The next consideration is whether the decedent left a will. The possessor of a will is required to present it to the county clerk within 30 days of the death.
The person named as executor in it can choose either the full probate process, the new small estate administration process, or not to handle the estate at all. A person who is not named as executor in the will can file to administer the estate after waiting at least 30 days following the decedent’s death if the named executor has not filed to handle the estate.
The executor or personal representative, now called an authorized successor, must present the will, a certified death certificate, and the Affidavit for Small Estate in order to start the process.
If the decedent did not leave a will, any family member who will inherit from the estate under West Virginia’s intestacy law is eligible to open the small estate 60 or more days after the person’s death, as long as no one else has done so. The documents needed are a certified death certificate and the Affidavit for Small Estate, which will include the potential heirs as governed by intestacy law.
Once all appropriate documents have been presented, the authorized successor will receive a certificate of administration to handle estate matters for six months. No further reporting is needed, though the authorized successor is still required to distribute the estate assets properly to the creditors and heirs.
A special option that doesn’t involve any activity at the courthouse or reporting is available when an estate is owed amounts of $5000 or less from an employer, government benefits, or a financial account. If the estate has not been opened 120 days after the person’s death, a private affidavit as authorized in WV Code sec. 44-1-28 may be submitted directly to the person or company holding the decedent’s funds. The amount will be paid to the surviving spouse, if any. If none, the intestacy heirs will receive the funds.
Small estates will not be listed with other probate estates in local newspapers to give 90 days’ legal notice to creditors. Instead, creditors have two years from the decedent’s death to file a claim against the small estate or its heirs.
With or without a will, as the funds are collected and after all estate debts are paid off, distributions can be made to the appropriate recipients called distributees.
In the next article, examples of small estates and the ways they are handled will be discussed.
For legal questions on estate planning or estate administration or other legal issues, state residents age 60 and over may contact West Virginia Senior Legal Aid at 800-229-5068 for free assistance from the staff attorney.
Sincerely, Deb Miller, JD
WV Senior Legal Aid volunteer
