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Guest Commentary: What is Probate?



An estate is left behind when a person dies which also known as a decedent. This estate will consist of everything a person owns, including personal property, real property, tangible assets (anything which can be touched, and includes both real property and personal property (or moveable property), and intangible assets (things such as copyrights, patents, computer software, franchises, bank accounts, stocks, bonds, trademarks, brand names, accounts receivable, customer lists, trade secrets or business licenses). All property must be accounted for in order to be transferred to the legal heirs or designated beneficiaries. This is known as the probate process. This process ensures the transference of assets is accomplished in accordance with all applicable laws and ensures all creditors of the estate are paid during the administrations of the estate.

A Last Will & Testament is the best way to make a person’s wishes known. A will should be written or typed, witnessed, signed and notarized in accordance with West Virginia law. Handwritten wills are recognized in West Virginia only if statutory requirements are satisfied, which means it should be in the decedent’s own handwriting, signed by the decedent that is witnessed by two individuals known by the decedent and notarized.

Any person who owns real or personal property should have a will regardless the present amount of the estate.

An individual may name the personal representative they want to manage the administration of the estate, in their will. This personal representative is known as either an executor (male) or executrix (female).

The preparation and execution of a will must be done in accordance with the requirements of West Virginia law. Therefore, it is highly recommended that an experienced attorney be contacted in preparation of an estate planning and documentation.

A will can be changed as often as an individual desires. Individuals may execute a new will; however, one may amend a will by executing a codicil, which is a legally-binding amendment, addition or supplement that explains, modifies, or revokes a will or part of one and must be signed with witnesses present and requires notarization.

A properly drawn and executed will is valid until it is changed or revoked. Changes in one’s circumstances after a will has been executed can affect the adequacy of the will or can change the manner in which the estate is to be distributed.

As a general rule, a person may dispose of their property as they choose. An exception to this rule provides that a married person cannot completely disinherit their spouse.

Bank accounts and real property held by a husband and wife, as joint tenants with rights of survivorship, usually pass to the survivor by law and not by the terms of the decedent’s will.

When a person dies without a will, it is known as intestate and the person’s property is distributed according to a formula fixed by law. If you die without a will in West Virginia, your assets will go to your closest relatives under state “intestate succession” laws. In most states, your spouse, children, parents or your siblings take priority under intestate succession. Only assets that would have passed through your will are affected by intestate succession laws. Usually, that includes only assets that you own alone, in your own name.

Many valuable assets don’t go through your will and aren’t affected by intestate succession laws. Here are some examples:

• property you’ve transferred to a living trust
• life insurance proceeds
• funds in an IRA, 401(k), or other retirement account
• securities held in a transfer-on-death account
• payable-on-death bank accounts, or
• property you own with someone else in joint tenancy.

These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will.

There is no will, therefore, a personal representative will need to wait 30 days before beginning the probate process and be of no relation to the decedent. This personal representative is known as the administrator (male) or Administratrix (female) and will also need to be bonded. Bonding is a promise by a surety insurance or guarantor to pay a certain amount if the personal representative fails to meet some obligation, such as fulfilling the terms of the will.

Having a will is imperative to ensure that your assets and money are distributed according to your wishes after you die. In other words, it allows you to choose when and how anything you own is going to be distributed to the individual(s) you want to receive it.

The division of an estate after death comes with varied emotions of family and friends. The slightest differences can result in hurt feelings and recriminations. Just as divorce becomes more complex and blended families more common, the dividing of assets has become even more complicated. To reiterate, a will that clearly lays out your wishes, may reduce conflict and speculation over what you “would have” wanted. Without a will, your property will be divided according to state law – this could produce a distressing result as well as speculation about what you wanted. Making a will, no matter how old a person is, can provide peace of mind and prevent your family from fighting over your possessions.

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