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OFFICE OF FIDUCIARY SUPERVISOR - PROBATE

"The Historic Berkeley County Courthouse"
100 West King Street, Second Floor, Suite 12
Martinsburg, West Virginia 25401

304-267-3001

Fax 304-267-7830

Maria L. Childers, Supervisor

Janet C. Holzhauser, Deputy

Judy C. DeHaven, Coordinator


PROBATE

is a process that includes determining when a Will is valid as well as administering the estate of deceased person. Probate protects the rights of creditors to claim against an estate and insures any remaining assets are distributed to the person or persons entitled to receive them, either by Will or intestacy.

ABOUT OUR OFFICE

In 1982 the West Virginia legislature created within the County Commission (Council) the Office of Fiduciary Supervisor (West Virginia Code 44, Article 3A). Known as the “optional procedure” for estate settlement this statute aids and assists County Commissions (Councils) in the administration of wills and estates. The 1982 legislature required use of the optional procedure in Kanawha County. A number of West Virginia counties have adopted the optional procedure as did Berkeley County in 1987.

OUR STAFF

assists in the probate process. We do not provide legal advice. Most estates are settled in less than one year, many in six months or less. An attorney is not required however estates with extraordinary issues may require the representative seek legal counsel.

OFFICE LOCATIONS AND HOURS

We remain located on the second floor of “The Historic Berkeley County Courthouse” in downtown Martinsburg at the corner of King and Queen Streets (directly across from the Public Library). The office is handicap accessible with ramp and elevator on the west side of the building. Regular office hours are Monday – Friday from 8:00 a.m. – 5:00 p.m. County offices are closed all legal holidays. Please allow thirty minutes to an hour for your first visit. You should arrive no later than 4:00 p.m.

GETTING STARTED

Carefully read the following to prepare for qualification and appointment as Fiduciary (Executor/Administrator) of an estate. Although you may be named Executor/ix by Will you do not have legal authority to serve in that capacity until the Will is admitted to probate and you’ve signed an application, affidavit and oath for which security may be required. When death occurs the probate process should begin within thirty (30) days.

Immediate Appointment of an Estate Representative will not be Possible in every Situation.

Depending upon estate circumstances requirements for appointment will vary. Letters of Administration will not be issued until all qualification requirements are met.

BEGINNING PROBATE

Our staff will require:

  1. A state issued death certificate (or copy of application for the death certificate signed by the funeral director). The certificate must list BERKELEY COUNTY as the decedent’s residence and include their social security number and marital status.

  2. If the decedent left a WILL/CODICIL(s) the ORIGINALLY SIGNED document(s), not a copy, must be delivered to our staff. Witness depositions and/or bond may be required.

  3. If there is a valid Will/Codicil(s) be prepared to provide the current address of each beneficiary named and their relationship, if any, to the decedent. Include contact information for any charitable organizations, churches, trustees etc. named. Additional information may be required for any deceased beneficiary.
    OR
    If there is NO WILL be prepared to provide the name, current address and relationship to the decedent of the heir or heirs at law. The heir or heirs at law are determined by West Virginia Intestate Succession law included herein.

  4. An approximate value of the decedent’s probate estate. This includes all real estate, personal property, accounts etc. owned by and titled SOLELY in the name of the decedent and any real estate or assets in which they own an “undivided” interest (1/2, 1/3, 1/4 etc).

  5. NO WILL – BOND REQUIRED (bond options provided herein).

  6. Administrative Fees – The appointment and initial recording fees range from $41.00 to $202.00+ depending on whether there is a Will/Codicil(s) and the estimated value of the GROSS estate. The cost of a corporate surety bond, if required, is an additional cost. All costs of administration, including a corporate bond, are reimbursable as probate assets may become available. A complete fee schedule is included herein.

WHO WILL BE ALLOWED TO SERVE AS FIDUCIARY?

If there is a valid WILL the person(s) named as executor/ix will be entitled to serve. If all named executors/ix are unwilling or unable to serve the residuary beneficiaries under the Will are expected to nominate an administrator/ix CTA
OR
If there is NO WILL a surviving spouse is first entitled to appointment. If no spouse survives and there are multiple heirs at law and thirty (30) days have not passed since death the signed, notarized *consent from a majority is required.

*consent(s) not required after thirty (30) days.

WHAT IS A SURETY BOND AND IS ONE REQUIRED?

“Surety – an individual or corporation who engages (agrees) to be responsible for the debt, default or miscarriage of another”.

If there is NO WILL or if there is a Will but “surety”, “security” or “bond” was not waived; or if the Will did not name an executor/ix; or if someone other than a named executor/ix applies to serve, a surety bond is required.

BONDING OPTIONS

If you are a WEST VIRGINIA RESIDENT---- there are two options:

  1. bring ANOTHER person willing to sign your bond who resides in and owns or has equity in real estate equal to the estimated value of the probate personal estate. That person must accompany you to our office and BRING with them a “JUSTIFICATION OF SURETY” document from the County Clerk’s Office ($2.50)
  2. OR
  3. you may apply to purchase corporate surety from a West Virginia licensed insurance agent.

NON-RESIDENTS will be required to purchase corporate surety.

WEST VIRGINIA INTESTATE SUCCESSION LAW HEIR(S) AT LAW (NO WILL)

  1. If the decedent is survived by a spouse and the decedent has no children or descendants of children from another marriage/relationship, the surviving spouse inherits 100% of the residuary estate.
  2. If the decedent is survived by a spouse AND they have children together AND the decedent also has children or descendants of children from another marriage/relationship, the surviving spouse receives 60% of the residuary estate and all children of the deceased, or their descendants, receive the remaining 40% by *representation. Children of a surviving spouse from another marriage/relationship receive nothing.
  3. If no spouse survives ALL children of the decedent, or their descendants share 100% of the residuary estate, by *representation.
  4. If no spouse, no children or descendants of children survive, the decedent’s parents or surviving parent receives 100% of the estate.
  5. If no spouse, no children, no descendants of children and no parents survive the decedent’s siblings or their descendants share 100% of the residuary estate, *by representation.
  6. If no spouse, no children, no descendants of children, no parents, no siblings and no descendants of siblings survive, the maternal grandparent(s), or their descendants by *representation share 50% of the residuary estate AND the paternal grandparent(s), or their descendants by *representation, share 50% of the residuary estate.
  7. If maternal and paternal grandparents are all deceased and leave no surviving descendants the entire residuary estate will escheat to the State. A rare occurrence.
*Representation: first generation descendants of the decedent would share equally in the residuary estate. If the decedent is predeceased by one or more first generation descendants, their share(s) are combined and then divided equally among the second generation descendants and so on.

COSTS OF ADMINISTRATION PAYABLE TO THE
“BERKELEY COUNTY CLERK”

Your FIRST TWO costs of administration are combined and due the day of your appointment. Do not fill in check amount before arriving in our office.

A. Appointment Fee (WV Code 44-3A042)
Gross Estate (includes joint assets) Amount
up to $10,000 $ 25.00
over $10,000 but not exceeding $50,000 $100.00
all gross estates over $50,000 $175.00

B. Recording Fee Amount
Wills/Codicils $ 11.00*
Executor/Administrator Docs (Application/Affidavit & Oath) $ 16.00*
Trustee/Testamentary Guardian Docs $ 11.00*

*Documents not exceeding five (5) pages. If document exceeds five (5) pages the filing fee is increased.


Recording Fees Amount
Inventory and Appraisement $ 11.00*
Affidavit and Waiver of Final Settlement $ 11.00*
Settlement of Account $ 11.00*
Proof of Claim Against Estate $ 11.00*
Disclaimers/Renunciations/Affidavits $ 11.00*
*Documents not exceeding five (5) pages. If document exceeds five (5) pages the filing fee is increased.


Miscellaneous Fees Amount
Letter of Administration (Qualification Certificate) $ 2.50
Settlements of Accounts (copy/mail) $30.0
Copies $ 1.50 1 – 2 pages then
$ 1.00 each additional page
Triple Seal (Exemplified) Certificate $ 5.00 plus copy charge
Certified (Clerk’s Certificate) $ 3.00 plus copy charge

GENERAL OVERVIEW OF THE PROBATE PROCESS

At the County level the estate of deceased person is administered in a three (3) step process:

  1. The APPOINTMENT of a personal representative (aka Fiduciary/Executor/Administrator) to manage the estate. The Fiduciary is known as Executor/ix if they were named as such by Will. They are known as Administrator/ix if there is no Will, the Will does not name an executor/ix or if someone other than a named executor/ix is appointed.
  2. The APPRAISEMENT of the estate. These forms, 6.01 and 6.02, identify and value all assets the decedent owned or had an interest in at the time of their death. You are required to complete and return the inventory and appraisement of the estate within ninety (90) days of your appointment. Failure to comply with a filing requirement is a misdemeanor subject to fine, penalty and removal of the Fiduciary.
    When filing the appraisement form 6.01 will be recorded with the Berkeley County Clerk. Form 6.02 is considered a confidential document and will not appear on public record. Any beneficiary under a Will, heir at law, creditor or their attorney may request and receive a copy of form 6.02. Our staff will advise you when a required NOTICE TO CREDITORS is scheduled for publication in the Journal newspaper. Publication of this notice begins a statutory sixty (60) day claim period. You will be notified in writing of any claims submitted to the Fiduciary office. It is your responsibility as estate representative to contact and respond to creditors.
  3. SETTLEMENT – When the sixty (60) day claim period expires, provided ALL known debts/claims and applicable taxes are paid or provided for an Affidavit and Waiver of Final Settlement may be submitted. This form requires the signatures of ALL RESIDUARY beneficiaries/heirs. When an affidavit and waiver with ALL required signatures has been filed with the Fiduciary/Probate office assets may be immediately distributed.
    IF one or more RESIDUARY beneficiaries/heirs DECLINE to sign the waiver OR the estate is insolvent you are required to prepare and submit a Settlement of Accounts (comprehensive statement reporting all income, disbursements and balance, if any, available for distribution).
    IF the estate is insolvent your accounting will provide for distribution of probate assets among creditors, pro rata, BY CLASS, as provided by West Virginia Code 44-2-21& 44-2-22.

    IF a Settlement of Accounts is required the Executor/Administrator is NOT AUTHORIZED to distribute assets until receiving a confirmation/approval letter from the Fiduciary/Probate office.

    West Virginia law prohibits our staff from preparing any accounting. Please do not ask us to. Those administering an insolvent estate are advised to contact an attorney or accountant for assistance.

Executors/Administrators are allowed a Commission for administering an estate. If the decedent died June 11, 2007 or after WV Code 44-4-12a changed the formula for computing the allowable rate of compensation. Our staff can provide a compensation rate schedule. Please note however a decedent’s Will may alter the amount of compensation allowed.

For dates of death on or after January 1, 2005 West Virginia Estate Tax is NO LONGER in effect.

REAL ESTATE OWNED BY THE DECEDENT IN OTHER JURISDICTIONS

If the decedent owned or had an interest in real estate in another WV COUNTY(IES) contact the Berkeley County Clerk to receive CERTIFIED copies of the Will and/or Appraisement and Settlement for recording in those counties.

If they owned or had an interest in real estate in OTHER STATE(S) you will likely need EXEMPLIFIED (triple seal) copies from the Berkeley County Clerk. Contact the Clerk/Register of Wills/Probate Court in that jurisdiction to determine any documentation they may require.

Please remember, all information provided herein is general and cannot possibly consider every factual estate situation. Issues can arise that may require you to eek the advice of an attorney or may require assignment of the estate to a Fiduciary Commissioner.

If you have any questions regarding the probate process please do not hesitate to call on our staff.
Thank you –

Berkeley County West Virginia Fiduciary/Probate Staff

Reference: West Virginia Code – Volume 12 – Chapters 41, 42, 43 & 44
West Virginia State Tax Department