Detailed Answer
Disclaimer: This article provides general information about preparing an heirship affidavit under West Virginia law. It is not legal advice. Consult a qualified attorney for guidance tailored to your situation.
1. What Is an Heirship Affidavit in West Virginia?
An heirship affidavit is a sworn statement used to establish who inherits a decedent’s assets when no will exists and no personal representative has been appointed. In West Virginia, you can use either:
- A small estate affidavit for personal property under $50,000 (WV Code §44-1-17).
- An affidavit of heirship for real estate to clear title in the county land records.
Both tools let heirs claim assets without formal probate.
2. West Virginia Statute for Small Estates
Under West Virginia Code §44-1-17, if the decedent’s personal property doesn’t exceed $50,000 and there’s no will or appointed executor, two heirs may sign an affidavit to collect assets. See the statute: WV Code §44-1-17.
3. Step-by-Step Guide to Drafting an Heirship Affidavit
- Confirm Eligibility: No will; estate value within statutory limits for small estates; no personal representative appointed.
- Gather Key Information:
- Decedent’s full name, date and place of death.
- Last residence and county of death.
- List of potential heirs (spouse, children, parents, siblings), with full names and current addresses.
- Identify Affiants: Two adult heirs with direct knowledge of the family tree. They must be disinterested in any dispute.
- Draft the Affidavit:
- Title: “Affidavit of Heirship of [Decedent’s Name]”.
- Preamble stating the purpose and reference to West Virginia Code §44-1-17 if for personal property, or noting real estate description if for land.
- Paragraphs listing decedent’s death details and each heir’s name, relationship, and residence.
- A statement that no will exists and no administrator has been appointed.
- A concluding clause where affiants swear under oath that the facts are true.
- Notarize: Have the two affiants sign before a notary public in West Virginia. Include the notarial certificate.
- Record with County Clerk: File the signed affidavit in the Circuit Clerk’s office of the county where the decedent lived or where the real estate is located. Pay the recording fee.
- Present to Third Parties: Use the recorded affidavit to transfer assets—banks, DMV, or land title companies will rely on it to distribute funds or clear title.
Helpful Hints
- Check with the local Circuit Clerk for any county-specific affidavit forms or filing requirements.
- Attach a certified copy of the decedent’s death certificate to your affidavit.
- Keep copies of all recorded documents and receipts for your records.
- If asset values exceed $50,000, you must open a full probate estate instead of using the small estate affidavit.
- When in doubt, consider a brief consultation with a probate attorney to avoid errors that could delay asset distribution.