The Small Estate Probate Process

By Deb Miller - West Virginia Senior Legal Aid Contributor

It was time for Joe to start what was needed to handle his sister Carrie’s estate. She had died recently. 

He had her will and thought her estate was likely to qualify as a small estate under West Virginia Code sec. 44-1A-1 et seq. 

This law authorizes a simpler estate administration when $50,000 or less of personal property and a maximum of $100,000 of real estate are to be transferred via the probate system. 

The small estate is charged lower probate fees, involves simpler procedures, and no closing report is needed. 

West Virginia no longer has an estate tax, so that is not a consideration.

Joe reviewed some information about the classifications of probate property (governed by Carrie’s will) and nonprobate property (controlled by the beneficiary listing for the property; wouldn’t be counted in the estate’s probate totals). Each was broken down into real and personal property categories.

Before her death, Carrie worked to expedite some aspects of the future estate administration by listing beneficiaries on certain accounts, making them non-probate property.

Carrie’s savings account was just over $3000, and she had included her daughter as a “payable on death” beneficiary on the account, making the savings a non-probate asset. It wouldn’t count in the probate category of personal property. 

Her $4000 checking account and the $350 Joe found in Carrie’s apartment would count in the personal property of her probate estate, subject to the terms of her will. 

Carrie didn’t own a car or real estate. If she had owned real estate solely in her own name, its probate value would be calculated as 167% of the property’s current assessed value on the county land books, as shown on the current property tax ticket. 

Her retirement account, now worth $35,000, had her daughter and Joe as the beneficiaries,

making it a nonprobate asset. 

Joe estimated her other personal property, such as furniture, jewelry, and clothing to be worth about $7500. Fortunately Carrie had no debts for the estate to pay other than the final utility bills and her credit card.

He also checked the West Virginia Treasurer’s unclaimed property website at https://wv.findyourunclaimedproperty.com/app/claim-search. He found $385 that as her administrator he could make a claim for. It would be included in her probate estate.

Joe totaled the probate personal property at $12,235 (checking account, cash, unclaimed funds, and furniture, etc.) and checked Carrie’s will to see who would receive what, including a $2000 gift for her church.

He called the county clerk’s office for an appointment to start the probate process, but learned that he was too early. Under the small estate rules, he had to wait until 30 days after her death. That time limitation wasn’t involved with larger estates. 

Joe was able to complete the Affidavit for Small Estate form to list the probate assets and estate beneficiaries before the appointment.   

If Carrie had not done a will, the recipients would be determined by the intestacy laws at West Virginia Code sec. 42-1-3 and -3A. An intestate estate of appropriate size can be administered under small estate rules.

For free legal assistance with a non-criminal matter, West Virginia residents age 60 or older may contact West Virginia Senior Legal Aid at 800-229-5068 or info@seniorlegalaid.org.