West Virginia Probate and Intestate Succession: What Happens Without a Will (2026)

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 § 44-1-1 et seq. and § 42-1-2. 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.

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Last updated: 2026-07-16. Figures and statutes cited reflect their in-force version as of 2026-07-16.