Detailed Answer
Short answer: In most cases under West Virginia law, assets that transfer automatically at death by right of survivorship (for example, joint bank accounts titled “joint tenants with right of survivorship” or real estate held as joint tenants with right of survivorship) do NOT become part of the decedent’s probate estate and therefore generally do not belong as part of the probate inventory of estate assets. Instead, those assets pass directly to the surviving joint owner (your mother) by operation of law.
Why: A probate inventory is intended to list assets that belong to the decedent and must be administered through the probate court so creditors can be notified and the estate can be distributed. Property that passed outside probate by a recognized nonprobate mechanism (survivorship, payable-on-death beneficiary designations, life insurance beneficiaries, retirement account beneficiaries, etc.) ordinarily is not subject to distribution through the estate, and thus it usually is not included as part of the estate inventory that the personal representative files with the court. For West Virginia statutory background on probate and decedent estate administration, see Title 44 of the West Virginia Code: https://code.wvlegislature.gov/title/44/.
Important qualifications and practical points:
- Document the transfer: Although you usually do not list survivorship property as an estate asset, you should document and disclose those transfers to the court and to interested parties if the court requests it. Many personal representatives attach a separate schedule of “nonprobate assets” showing items that passed outside probate with copies of account titles or deeds.
- Form vs. substance: The label on an account or deed matters, but courts may look beyond form. If the joint ownership was actually a sham (for example, the decedent put another person’s name on an account solely to defeat creditors), a court could determine the asset remained the decedent’s for probate purposes. If there is concern about intent or possible creditor claims, consult an attorney.
- Creditors and claims: Some nonprobate transfers can still be subject to creditor claims in limited circumstances. If the estate has unpaid debts or the transfer is challenged, the court may examine those transfers.
- Local practice: Circuit courts and clerks in West Virginia sometimes have local forms or local practice about how to present an inventory and how to disclose nonprobate transfers. Contact the probate clerk or review local rules when you prepare filings. The West Virginia Judiciary site is a starting point: https://www.courtswv.gov/.
Example (hypothetical): The decedent held a checking account titled “Jane Doe and John Doe, JTWROS.” Jane died and John survived. That account typically passes to John outside of probate by right of survivorship and would not be listed as an asset of Jane’s probate estate. However, if Jane’s children suspect the joint title was added only to avoid paying Jane’s creditors, they could ask the probate court to investigate and potentially bring the account into probate.
Bottom line: Do not automatically place survivorship assets in the probate inventory as estate property. Instead, prepare the probate inventory for property belonging to the decedent and prepare a separate, documented schedule of nonprobate/survivorship transfers so the court and interested parties see what passed outside the estate. If you have any doubt whether a specific item truly passed by right of survivorship or whether a creditor or other party might challenge the transfer, seek legal advice promptly.
This is general information, not legal advice. Consult a West Virginia attorney about your specific situation before taking action.
Helpful Hints
- Gather title documents: get deeds, account agreements, and beneficiary designations that show joint tenancy or right-of-survivorship language.
- Make a separate list of nonprobate assets: label them clearly (“JTWROS,” “POD,” “beneficiary designated”) and attach copies when you file probate paperwork.
- Keep certified copies of the death certificate handy; financial institutions and the county recorder will usually require them to complete transfer paperwork.
- Check account statements: look for evidence of joint deposits or who contributed funds—this can matter if a transfer is contested.
- Contact the probate clerk: ask what local inventory form the court expects and whether the clerk wants nonprobate transfers reported in a particular way.
- Be cautious about presumed gifts: if the decedent funded the account alone and added another name late in life, a challenge is more likely.
- Consider creditor timelines: file for probate and give required notices so you comply with West Virginia claim procedures (see Title 44 for estate administration rules: https://code.wvlegislature.gov/title/44/).
- When in doubt, consult a probate attorney in West Virginia to help with inventory preparation and to advise if nonprobate transfers could be contested.
Disclaimer: This article provides general information about West Virginia probate practice and is not legal advice. It does not create an attorney-client relationship. For advice tailored to your facts, consult a licensed West Virginia attorney.