Detailed Answer
Disclaimer: This is not legal advice. This article is for informational purposes only. Consult a qualified attorney about your specific situation.
In West Virginia, certain real estate interests pass outside of probate when the owner dies. Examples include joint tenancy with right of survivorship and transfer-on-death deeds. However, even if some property transfers automatically, you may still need to probate the decedent’s will to clear title to other assets, collect debts owed to the estate, and ensure creditors are paid.
Automatic Transfers at Death
- Joint Tenancy: When real property is owned as joint tenants with right of survivorship, the surviving joint owner automatically inherits the decedent’s share without probate.
- Tenancy by the Entirety: In West Virginia, a married couple may hold property as tenants by the entirety, which also carries a right of survivorship.
- Transfer-on-Death Deed: West Virginia law allows a revocable transfer-on-death deed. Under W. Va. Code § 62-6-6, you can name a beneficiary to receive title automatically at death.
Why Probate May Still Be Necessary
Even if some real property passes automatically, the will must be probated to:
- Validate the Will: Probate confirms the will is valid under W. Va. Code § 41-1-3.
- Appoint a Personal Representative: The court names someone to manage the estate, pay debts, and distribute assets. Without probate, that person has no legal authority.
- Clear Title to Other Assets: Banks, brokers, and the DMV often require a probate order to transfer or liquidate assets not held in joint tenancy or by TOD deed.
- Resolve Creditor Claims: Probate provides a deadline and process for creditors to file claims against the estate under W. Va. Code § 41-1-6.
Helpful Hints
- Review your deeds: Determine if the property is held in joint tenancy or via a TOD deed.
- Locate the original will and file it promptly with the county probate court.
- Notify potential creditors and publish notice as required by W. Va. Code § 41-1-6.
- Obtain legal advice to confirm which assets bypass probate and which do not.
- Keep detailed records of estate expenses and distributions.
- Communicate with heirs early to reduce misunderstandings about probate requirements.