Disclaimer: This article is for informational purposes only and does not constitute legal advice.
Detailed Answer
Common Form Probate
In West Virginia, you can admit a will to probate in common form by filing an affidavit instead of holding a court hearing. Under W. Va. Code § 41-1-6, the executor or a subscribing witness swears that the will is genuine. The clerk then issues letters testamentary. Common form probate is faster and less costly. However, it offers only prima facie proof of the will’s validity. Interested parties have two years from the probate date to contest the will by requesting a solemn form proceeding.
Solemn Form Probate
Solemn form probate requires a formal court hearing. As provided in W. Va. Code § 41-1-7, you must serve notice on all heirs and legatees at least 20 days before the hearing. The testator’s subscribing witnesses then testify under oath about the will’s execution. A final order of probate in solemn form conclusively establishes the will’s validity. No further contest may occur after the court admits the will in solemn form.
Key Differences
- Proof method: Common form uses affidavit; solemn form uses live witness testimony in open court.
- Time frame for challenges: Common form allows a two-year contest period; solemn form bars challenges once admitted.
- Cost and complexity: Common form is quicker and less expensive; solemn form requires more time, notice, and court resources.
- Finality: Common form offers provisional admission; solemn form provides conclusive proof of validity.
Helpful Hints
- Choose common form to speed up probate when you expect no disputes.
- Use solemn form if disputes are likely or if an heir files a caveat.
- Serve all interested parties correctly to avoid delays in solemn form probate.
- Track the two-year contest deadline after common form admission.
- Consult a West Virginia probate attorney early to determine the best form for your situation.