West Virginia
West Virginia Probate and Intestate Succession: What Happens Without a Will (2026)
Independently fact-checked against primary sources (last audited August 20, 2026). · Reviewed by the RecordingLaw editorial team. · Law checked current as of August 20, 2026. · 7 primary sources cited on this page. How we verify our legal content
In West Virginia, there is no separate probate court. Instead, the County Commission of each of the state's 55 counties acts as the court of probate, with day-to-day filings handled by a non-judicial Fiduciary Supervisor or Fiduciary Commissioner under W. Va. Code § 44-1-1 et seq.
Information last verified on 2026-07-16. This article has not yet been reviewed by a licensed lawyer.
How Probate Works in West Virginia
West Virginia's probate system is structurally different from most states. Rather than a dedicated probate court, the County Commission of each county holds exclusive jurisdiction over the probate of wills and administration of estates under W. Va. Code § 7-1-3. The county commission delegates most of the practical work to a Fiduciary Supervisor (in larger counties, under W. Va. Code § 44-3A) or a Fiduciary Commissioner, who reviews filings, summons witnesses when needed, and issues procedural orders. Kanawha County's Fiduciary & Probate Department, for example, is headed by an appointed Fiduciary Supervisor who processes the county's estate filings day to day. Every substantive action in the case, however, is still confirmed by the county commission itself at its next session, since the commission remains the formal court of record.
West Virginia has not adopted the Uniform Probate Code, so it does not use the "formal" and "informal" administration labels common in UPC states. Ordinary administration instead follows a fixed sequence: qualification of a personal representative (an executor named in a will, or an administrator appointed under W. Va. Code § 44-1-4 if the decedent died intestate), appraisement of the estate's assets, publication of notice to creditors, and a final settlement and accounting, all under fiduciary-supervisor oversight with the county commission as the court of record. If a dispute arises, such as a will contest or a disagreement over who should be appointed, the matter goes before the commission for a hearing. Estates that qualify by size can skip this process altogether using the small estate affidavit described below.
Creditor timing in West Virginia is notably fast compared to many other states. Once an appraisement is filed, the county commission clerk must publish notice to creditors within 30 days (or within 120 days of the personal representative's qualification if no appraisement is filed). Creditors then have only 60 days from the date of first publication to file a claim, or it is forever barred, a considerably shorter window than the 3 to 4 months common elsewhere.
Intestate Succession in West Virginia: Who Inherits Without a Will
When a West Virginia resident dies without a valid will, W. Va. Code § 42-1-3 sets the surviving spouse's share according to how the decedent's descendants relate to that spouse, a more granular rule than many states use. The spouse takes the entire intestate estate if the decedent has no descendants, or if all of the decedent's surviving descendants are also descendants of the surviving spouse and the spouse has no descendants from any other relationship. The spouse takes three-fifths of the estate in a blended-family scenario running the other direction: all of the decedent's descendants are also the spouse's, but the spouse additionally has descendants who are not the decedent's. The spouse takes one-half of the estate if one or more of the decedent's descendants are not also descendants of the surviving spouse, in other words, when the decedent has children from outside the marriage.
Whatever does not pass to the spouse, or the entire estate if there is no surviving spouse, passes under W. Va. Code § 42-1-3A: first to the decedent's descendants by representation, then, if none survive, to the decedent's parents, then to descendants of the decedent's parents (siblings, then nieces and nephews), and then to grandparents or their descendants if none of the above survive. An heir who does not survive the decedent by at least 120 hours is treated as having predeceased the decedent under W. Va. Code § 42-1-3B, which prevents an estate from passing briefly through someone who died shortly after the decedent only to pass again through that person's own estate. West Virginia is an ordinary common-law separate-property state, not a community-property state, so this statutory formula, not any pre-existing spousal ownership share, is what actually controls distribution.
One way to make sure your property goes to the people you actually choose, rather than following West Virginia's intestate succession order, is to have a valid will in place. recordinglaw.com's free West Virginia Last Will and Testament Generator can help you create one, with no account required.
Small Estate and Simplified Probate in West Virginia
West Virginia's small estate procedure, the West Virginia Small Estate Act, lets qualifying estates skip full administration entirely. Under W. Va. Code § 44-1A-2, a "small asset" is probate personal property with an aggregate fair market value at death of no more than $50,000. Real property does not qualify under this affidavit; any estate that includes real estate must go through full administration regardless of its total value. The affidavit must list all heirs and beneficiaries with their addresses and typically requires a death certificate.
Timing depends on who is filing. If the person filing the affidavit was nominated executor in a will, West Virginia requires a 30-day wait from the date of death before filing. If the decedent died intestate, or the affiant was not nominated in a will, the wait is 60 days. Once approved, the authorized successor may act on the estate's behalf for up to six months, extendable for another six months for good cause under the statute.
Estate and Inheritance Tax in West Virginia
West Virginia levies neither a state estate tax nor a state inheritance tax, and this has been the case for some time. Only the federal estate tax can apply to a West Virginia estate, and only above the federal exemption, which is $15,000,000 per individual for deaths in 2026. In practice, that means the overwhelming majority of West Virginia estates owe no estate-level tax at all, state or federal.
Do You Need a Probate Attorney?
Many small, uncontested West Virginia estates can move through the small estate affidavit process, or even standard administration, without an attorney, particularly with help from the county's fiduciary supervisor. An attorney is worth engaging when a will is likely to be contested, when the estate includes a business interest or real property alongside a complicated mix of heirs, when the family is blended in a way the intestate succession statute's 3/5 or 1/2 splits do not resolve cleanly, or when the 60-day creditor deadline creates real risk of a missed claim. For Probate by State, see how West Virginia's structure compares with neighboring states.
Disclaimer
This article provides general information about probate and intestate succession in West Virginia as of the verification date above. It is not legal advice and does not create an attorney-client relationship. It is not a substitute for advice from a probate attorney licensed in West Virginia, particularly for a contested estate, a business interest, a blended family, or an estate large enough to raise federal estate tax questions. Figures, thresholds, and program details change; verify current details directly with the official source before relying on any figure here.
Last updated: 2026-07-16. Figures and statutes cited reflect their in-force version as of 2026-07-16.
More West Virginia Laws
Frequently Asked Questions
What court handles probate in West Virginia?
There is no separate probate court. The County Commission of the county where the decedent lived acts as the court of probate, with day-to-day filings handled by a Fiduciary Supervisor or Fiduciary Commissioner under W. Va. Code § 44-1-1 et seq.
What happens if you die without a will in West Virginia?
Your estate passes under W. Va. Code §§ 42-1-3 and 42-1-3A. The surviving spouse's share ranges from one-half to the entire estate depending on whether the decedent's descendants are also the spouse's; anything not passing to the spouse goes to descendants, then parents, then siblings, in that order.
What is the small estate limit in West Virginia?
$50,000 in personal property only, under W. Va. Code § 44-1A-2. Real property cannot be transferred through this affidavit process and requires full administration regardless of the estate's total value.
Does West Virginia have an inheritance tax or estate tax?
No. West Virginia levies neither tax. Only the federal estate tax can apply, and only to estates above the federal exemption of $15,000,000 per person in 2026.
How long do creditors have to file a claim against a West Virginia estate?
60 days from the date of first publication of notice to creditors, a shorter window than the 3 to 4 months common in many other states. Claims not filed in time are forever barred.
Does a surviving spouse get everything in West Virginia if there's no will?
Only if the decedent has no descendants, or all surviving descendants are shared with the spouse and the spouse has no descendants of their own from elsewhere. Otherwise the spouse's share drops to three-fifths or one-half under W. Va. Code § 42-1-3.
How long does the small estate affidavit process take in West Virginia?
There is a mandatory waiting period after death before filing, 30 days if the affiant was nominated executor in a will or 60 days otherwise, after which the affidavit can be used and the authorized successor may act for up to six months.
Updates
Independently fact-checked against the cited primary sources; governing law re-checked for recent changes
Corrected the citation for the County Commission's probate jurisdiction. W. Va. Code 44-1-1 addresses only an executor's lack of authority before qualifying, and 42-1-2 governs intestate succession to heirs, not court jurisdiction; the actual jurisdictional grant (county commissions have original jurisdiction over all probate matters, appointment of personal representatives, and settlement of accounts) is W. Va. Code 7-1-3. The underlying legal claim, that West Virginia has no separate probate court and the County Commission performs that role, was already correct; only the citation was wrong.
Governing law re-checked for recent changes
Reviewed and approved by an editor
The Law Behind This Article
This article rests on the statutory provisions below, held in our own legal record and retrieved from the official source. Tap a section to read the operative text.
West Virginia Code
§ 42-1-2Intestate estate.In force
(a) Any part of a decedent's estate not effectively disposed of by will passes by intestate succession to the decedent's heirs as prescribed in this code, except as modified by the decedent's will. (b) A decedent by will may expressly exclude or limit the right of an individual or class to succeed to property of the decedent passing by intestate succession. If that individual or a member of that class survives the decedent, the share of the decedent's intestate estate to which that individual or class would have succeeded passes as if that individual or each member of that class had disclaimed his or her intestate share.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at code.wvlegislature.gov
§ 42-1-3Share of spouse.In force
The intestate share of a decedent's surviving spouse is: (a) The entire intestate estate if: (1) No descendant of the decedent survives the decedent; or (2) All of the decedent's surviving descendants are also descendants of the surviving spouse and there is no other descendant of the surviving spouse who survives the decedent; (b) Three fifths of the intestate estate, if all of the decedent's surviving descendants are also descendants of the surviving spouse and the surviving spouse has one or more surviving descendants who are not descendants of the decedent; (c) One half of the intestate estate, if one or more of the decedent's surviving descendants are not descendants of the surviving spouse.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at code.wvlegislature.gov
§ 42-1-3AShare of heirs other than surviving spouse.In force
Any part of the intestate estate not passing to the decedent's surviving spouse under section three of this article, or the entire intestate estate if there is no surviving spouse, passes in the following order to the individuals designated below who survive the decedent: (a) To the decedent's descendants by representation; (b) If there is no surviving descendant, to the decedent's parents equally if both survive, or to the surviving parent; (c) If there is no surviving descendant or parent, to the descendants of the decedent's parents or either of them by representation; (d) If there is no surviving descendant, parent, or descendant of a parent, but the decedent is survived by one or more grandparents or descendants of grandparents, half of the estate passes to the decedent's paternal grandparents equally if both survive, or to the surviving paternal grandparent, or to the descendants of the decedent's paternal grandparents or either of them if both are deceased, the descendants taking by representation; and the other half passes to the decedent's maternal relatives in the same manner; but, if there is no surviving grandparent or descendant of a grandparent on either the…
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at code.wvlegislature.gov
§ 42-1-3BRequirement that heir survive decedent for one hundred twenty hours.In force
An individual who fails to survive the decedent by one hundred twenty hours is deemed to have predeceased the decedent for purposes of intestate succession, and the decedent's heirs are determined accordingly. If the time of death of a decedent or of an individual who would otherwise be an heir, or the times of death of both, cannot be determined, and it is not established that the individual who would otherwise be an heir survived the decedent by one hundred twenty hours, it is deemed that the individual failed to survive for the required period. This section is not to be applied if its application would result in a taking of intestate estate by the state under section three-c of this article.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at code.wvlegislature.gov
§ 44-1-1Executor has no powers before qualifying.In force
A person appointed to be the executor of a will shall not have the powers of executor until he or she qualifies by taking an oath and giving bond, unless not required to post bond by §44-1-8 of this code, which shall then be admitted to the records of the clerk of the county in which the will, or an authenticated copy thereof, is admitted to record, except that he or she may provide for the burial of the testator, pay reasonable funeral expenses, and preserve the estate from waste.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at code.wvlegislature.gov
§ 44-1-4Administration shall be granted to the distributees who apply therefor, preferring first the husband or wife, and then such of the others entitled to distribution as the county commission or clerk shall see fit. If no distributee apply for administration within 30 days from the death of the intestate, the county commission or clerk may grant administration to one or more of the creditors of the decedent, or to any other person who shall be fit.In force
(b) Notwithstanding the provisions of subsection (a) of this section: (1) Any person having an interest in real estate situate in this state that was seized and possessed by a decedent who was a nonresident of this state and who has died interstate without any will, including a personal representative who has qualified in another state or jurisdiction, for which no appointment of an ancillary personal representative or administrator to administer the real estate within this state is necessary for any proper purpose may execute and tender for recording in the county an affidavit setting forth in substance: (A) A Description of the real estate owned by the nonresident decedent at the time of his or her death situate within the county where the affidavit is to be recorded together with its assessed value for tax purposes and its fair market value at the date of death of the decedent; (B) That the nonresident decedent died interstate without any will presented or probated in this state or in any other state or jurisdiction; (C) That more than 60 days have passed since the death of the decedent and no personal representative or administrator of the decedent's estate has been…
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at code.wvlegislature.gov
§ 44-1A-1Short title; definitions.In force
(a) This article may be cited as the West Virginia Small Estate Act. (b) For the purposes of this article, the following definitions apply: (1) “Authorized successor” means the successor of a decedent who files an affidavit and is certified and authorized by the clerk of the county commission or the fiduciary supervisor thereof, pursuant to the provisions of this article. (2) “Interested Person” means heirs, devisees, distributees, legatees, children, spouses, or creditors of the decedent and beneficiaries and any others having a property right in or a claim against the estate of a decedent or property in a small estate. Interested persons include persons having priority for appointment as a personal representative and other fiduciaries representing interested persons. An interested person may also include a bank, financial institution, credit union, or person that is holding assets related to the estate.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at code.wvlegislature.gov
§ 44-1A-2Administration of a small estate upon affidavit and without appointment.In force
(a) Notwithstanding any provisions of this code to the contrary, the small estate of a decedent who dies domiciled in this state, without owning any probate real property or without owning any interest in probate real property, may be administered upon affidavit and without the appointment of a personal representative, and the small assets of the decedent may be paid or delivered to the authorized successor as provided in this article. (b) Any successor of a decedent who dies domiciled in this state, without owning any probate real property or without owning any interest in probate real property, may execute and tender for recording to the clerk of the county commission, or the fiduciary supervisor of the clerk of the county commission, of the county in this state which would have jurisdiction over the probate concerning the estate and assets of the decedent an affidavit made upon oath and under penalty of perjury concerning the small estate setting forth in substance: (1) The name and current address of the affiant; (2) The name of the decedent, the date of death of the decedent, and the address and residence of the decedent at his or her death; (3) Whether the decedent had…
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at code.wvlegislature.gov
§ 44-3A-2Nature of office of fiduciary supervisor and fiduciary commissioner; duties of county commission with respect to orders and findings of such supervisor or commissioner.In force
Except as may be provided in article thirteen of this chapter, the office of fiduciary supervisor and of fiduciary commissioner shall not be construed to vest judicial power in the holder or holders thereof. Such offices are created to aid and assist the county commission in the proper and expeditious performance of the duties of such commissions with respect to the administration of estates and trusts and every order or finding of any fiduciary supervisor or fiduciary commissioner shall be subject to confirmation and approval of the county commission, and be considered for confirmation at the next regular or special session of the commission and be promptly confirmed or, if not confirmed, a date set for hearing thereon. Every order of the fiduciary supervisor or fiduciary commissioner shall remain in effect while awaiting confirmation by the county commission unless the commission provides an alternative means of effectuating the purpose or purposes of the order by providing a lawful alternative thereto.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at code.wvlegislature.gov
§ 7-1-3Jurisdiction, powers, and duties.In force
(a) The county commissions, through their clerks, shall have the custody of all deeds and other papers presented for record in their counties and the same shall be preserved therein, or otherwise disposed of as now is, or may be prescribed by law. They shall have jurisdiction in all matters of probate, the appointment and qualification of personal representatives, guardians, committees, curators and the settlement of their accounts and in all matters relating to apprentices. They shall also, under the rules as now are, or may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their counties, including the establishment and regulation of roads, ways, streets, avenues, drives and the like, and the naming or renaming thereof, in cooperation with local postal authorities, the Division of Highways and the directors of county emergency communications centers, to assure uniform, nonduplicative conversion of all rural routes to city-type addressing on a permanent basis, bridges, public landings, ferries and mills, with authority to lay and disburse the county levies.
Official text (excerpt) · last checked 2026-07-30 · Read the full text in our law library · Verify at code.wvlegislature.gov
Cited in 3 court opinionsMost recently applied by a court: 2019
Leading cases:
- EQT Production Co. v. Wender (District Court, N.D. West Virginia 2016, 191 F. Supp. 3d 583)“…s offering nude dancing, § 7-l-3jj, among many others. See W. Va. Code §§ 7-1-3 through 7-l-3nn, 7-14 through 7-1-15;…”
- Monongalia Cnty. Dev. Auth. v. Traveler's Indem. Co. of Conn. (United States District Court 2019, 377 F. Supp. 3d 633)“…ity Bylaws, the County Commission Jurisdictional Statute, W. Va. Code § 7-1-3 , et seq. , and the testimony of MCDA…”
- The Monongalia County Development Authority v. The Traveler's Indemnity Company of Connecticut (District Court, N.D. West Virginia 2019)“…aws, the County Commission Jurisdictional Statute, W. Va. Code § 7-1-3, et seq., and the testimony of…”
Identified automatically from the court opinions citing this section — not a ranking of which case controls.
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Sources and References
- West Virginia Code § 42-1-2, Persons entitled to take under intestate succession(code.wvlegislature.gov).gov
- West Virginia Code § 42-1-3, Share of surviving spouse(code.wvlegislature.gov).gov
- West Virginia Code § 42-1-3B, Requirement that heir survive decedent for 120 hours(code.wvlegislature.gov).gov
- West Virginia Code § 44-1A-1, Short title and purpose (West Virginia Small Estate Act)(code.wvlegislature.gov).gov
- West Virginia Code § 44-1A-2, Definitions and small estate affidavit procedure(code.wvlegislature.gov).gov
- West Virginia Code § 44-3A-2, Fiduciary Supervisor duties(code.wvlegislature.gov).gov
- Kanawha County, West Virginia, Fiduciary & Probate Department(kanawha.us).gov
- Cornell Law School, Legal Information Institute, "Intestate Succession"(law.cornell.edu)