Information on Recording a Last Will and Testament,
Filing a Small Estate Affidavit, or Opening Probate
If the decedent had a Last Will and Testament there are three options: 1) Record the Will Only; 2) Record the Will and file a Small Estate Affidavit; 3) Record the Will and open probate. All require either the original death certificate or a copy of the temporary death record from the funeral home:
**You are welcome to drop-off your forms in person, but you may not be able to meet with the probate department without an appointment**
|Option 1) Record the Will Only - No Letters of Administration are provided.|
|Bring in or mail, by certified or overnight mail, the original Last Will and Testament to the Courthouse for recording. No Letters of Administration are provided. Include a $12 filing fee if the Will is 4 pages or less. $1/page more for each additional page. We accept cash, money order, or credit card. If you’d like to pay by credit card, leave a cell number that you can be reached at Monday – Friday between 9am and 5pm and our staff will contact you for the credit card information. There is a $2 administrative fee for credit card payments. We will mail you a copy of the Will and your receipt. Our office retains the original Will by law. West Virginia law states the Will is to be recorded within 30 days of death. See WV Code 41-5-1.|
|Option 2) Record the Will and File a Small Estate Affidavit – Certificate of Authorization for small assets is provided.|
This option can be used to appoint an “Authorized Successor” if the assets of the decedent were under $100,000 for real property (homes, land, oil and gas rights) AND under $50,000 for personal property (i.e., bank accounts, anything payable to the estate, automobiles, household goods). See WV Code 44-1A-1.
The executor named in the Will can file 30 or more days after death, or a beneficiary in the Will can file 60 days after death, if no other probate has been opened.
The Small Estate Affidavit is a single form that is an appointment of an Authorized Successor, a list of beneficiaries, and a list of the small assets of the decedent. It changes title on the real property listed. The Certificate of Authorization that is issued after filing provides access to the specific small assets that are listed.
The Will and Small Estate Affidavit can be recorded together, or the Will can be recorded first to meet the burden of the law, and the Small Estate Affidavit can be filed at a later date if assets are found that the executor needs access to, for example, a car title, or a refund check made payable to the estate.
Use this form titled: Small Estate Affidavit Form and Instructions – Testate (Will)
Example of Completed SEA Form and Other Resources:
|Option 3) Record the Will and Open probate – Letters of Administration are provided.|
If the decedent’s assets are over the limit to qualify for the Small Estate Affidavit, probate will be required to change title on real property that was owned in the decedent’s name only, to gain access to accounts just in the decedent’s name, deposit checks made payable to the estate of the decedent, change title on vehicles, etc. See WV Code Chapter 44.
Letters of Administration give a broader authority than the Certificates of Authorization that are issued with a Small Estate Affidavit. For example, if a lawsuit is pending, or if access to medical records is needed, Letters of Administration, and therefore probate, would be required.
There are three parts to probate, 1) opening the probate estate and getting Letters of Administration 2) completing the Appraisement form and advertising for creditors, and 3) filing the settlement and distributing to the beneficiaries.
Probate takes at the minimum four months, but can take much longer due to many factors.
Use this form titled: Opening Probate Forms and Instructions – Testate (Will)
Examples of Completed Forms and Other Resources: