OFFICE OF THE FIDUCIARY SUPERVISOR

BERKELEY COUNTY COMMISSION

COUNTY COURT HOUSE

100 WEST KING STREET

TEL 304-264-1940 OR 304-264-2157

                                                     MARTINSBURG, WEST VIRGINIA 25401

                                                                         Fax 304-267-1794

                                                  PROBATE AND ESTATE ADMINISTRATION

                                                       BERKELEY COUNTY, WEST VIRGINIA

            In 1982 the West Virginia Legislature created within the County Commission the Office of the Fiduciary Supervisor (WV Code 44, Article 3A).  Known as the optional procedure for estate settlement this statute aids and assists County Commissions in the proper administration of estates.  Appointed by Order of the County Commission the Fiduciary Supervisor has general supervision of all estate matters. For Kanawha County the 1982 legislation was mandatory.  Berkeley County is one of several counties that have since adopted the optional procedure..

             Under this statute any power, authority or duty conferred upon the County Clerk with respect to the settlement, regulation or supervision of estates in any provision of this article or in any provision of the West Virginia  State Code is transferred to the Fiduciary Supervisor.

             The following information has been drafted to help you understand the process of probate and  administration process.  This  is general information and does not take  into consideration every factual situation.  Most estates are settled in under a year however some may pose extraordinary circumstances that could delay settlement and possibly require you to see the advise of an attorney.  Otherwise the only professional service you need may be that of a tax professional.

            We do not provide legal advise.  If you have any questions regarding the process of administration please do not hesitate to call on our staff.

                                                                    Maria Childers

                                                                    Janet Holzhauser

                                                                     Judy DeHaven

References:

West Virginia Department of Tax & Revenue

West Virginia State Code

WHY PROBATE

 When a person dies an estate is created.  An estate includes but is not limited to real estate, personal property, vehicles, bank accounts, stocks, bonds, certificates of deposit, cash on hand, refunds, interest checks  etc.  Present law requires that someone manage, or administer,  the estate of the decedent.  Administration is the process that  seeks to protect the right of  creditors to claim against the estate and insures that by following the procedures required by law, good and clear title to any remaining assets will be passed to the person or persons entitled to receive it.

 Every person who is legally competent has the right by making a Will to designate who shall take their property upon death, in what amount and under such conditions or restrictions he or she may want to set forth. To probate a Will means to prove the Will is valid.

 If a person does not make a Will they are said to have died “interstate”.  Remaining assets will then pass to the decedent's heirs at law, in such proportions as designated by West Virginia statutes in effect on the date of death.

You must understand the difference between the terms "probate" and "non-probate".  

Probate assets include those titled solely in the name of the decedent or any in which they may have undivided interest, such as one-half, one-third, etc.  After payment of debts and claims residuary probate assets pass to beneficiaries by a Will or if there is no Will, to the decedent's heirs at law as outlined by the West Virginia Laws of Intestacy.

Non-probate assets include those titled in the name of the decedent "or"  another person with "right of survivorship", assets titled "payable on death" and assets and life insurance paid directly to a named, surviving beneficiary.  The non-probate estate is not controlled by a Will and not by the laws of intestacy.  Assets identified as non-probate pass directly to the surviving co-owner or beneficiary,

APPOINTING A" FIDUCIARY" (AKA EXECUTOR/ADMINISTRATOR)

The term “fiduciary” is a general one used to include an executor, administrator, curator, trustee, guardian, conservator or other person serving in a similar trust capacity.

T he Fiduciary Supervisor’s Office is the first place to visit in order to determine who will be allowed to qualify as fiduciary. Our office is currently located in the Historic Berkeley County Courthouse, 100 West King Street, Room Two, Martinsburg, West Virginia. Office hours are Monday through Friday from 9:00 a.m. until 5:00 p.m.  When making your first visit we ask you arrive no later than 4:00 p.m.

WILLS AND THE APPOINTMENT OF AN EXECUTOR

If there is a Will the ORIGINAL, not a copy, should be presented in our office and offered for probate within thirty (30) days of the date of death, preferably by the named Executor(s).

Also required is a copy of the state issued death certificate or a copy of the application for the death certificate signed by the funeral director.  This document must show the decedent's residence, date of death, age, social security number and marital status.

Our staff will examine the original purported Will and determine if it has been executed in accordance with west Virginia law.

If the Will is not accompanied by a self-proving affidavit or if is a holographic Will that is written wholly by the hand of the decedent and signed by him or her, witness depositions will be required.  Fiduciary staff will advise you accordingly.

Whether or not there is a Will a person cannot legally act as Fiduciary until they have appeared before the Fiduciary Supervisor and executed an oath for which security may or may not be required. 

If you are the named executor(s) and the Will states you can serve without "surety", "security" or "bond", you will not be required to post bond.

WHEN A BOND IS REQUIRED WITH A WILL

If you are not the named executor(s) in the Will, or the Will does not waive "surety", "security" or "bond", you will be required to post bond.

PURPOSE OF OATH

Your oath is a pledge or formal promise to the State of West Virginia made to secure the estate against loss, damage or default.  If it is determined you have breached your fiduciary duty legal action may be brought against you and, if applicable, whoever signed as your surety.

At the time you appear to qualify as Executor you will need to provide an estimated value of the decedent's probate estate.  Should the inventory and appraisement of the estate reveal assets to be greater or lesser than first anticipated the estimate, or bond, will be adjusted accordingly.

APPOINTMENT OF AN ADMINISTRATOR

If there is no Will and a spouse survives, he or she has the first right to be appointed Administrator.  If there is no surviving spouse and there is more than one heir at law you need the signed, notarized consent of the other heirs to qualify.  Consent forms are available in the Fiduciary office.

However if thirty (30) days have passed since the death, consent forms are not required.  After thirty days anyone may apply for appointment as the Administrator.

Also required is a copy of the state issued death certificate or a copy of the application for the death certificate signed by the funeral director.  This document must show the decedent's residence, date of death, age, social security number and marital status.

ADMINISTRATORS WILL BE REQUIRED TO POST BOND.

POSTING BOND

If you are required to post bond there are two options.

If you are a West Virginia resident you may ask another person who owns or has sufficient equity in real estate located within West Virginia as your bondsperson. If their real estate is not located in Berkeley County they will need to go to the County Clerk's Office in the county where the real estate is located and ask for a document known as a "justification of surety".

Otherwise you will need to purchase corporate surety through an insurance agency licensed to do business in the State of West Virginia.

If you are NOT a resident of West Virginia corporate surety will be REQUIRED.

LETTERS OF ADMINISTRATION

After you qualify as Administrator you will receive  “Letters of Administration”.  If prior to the decedent's death you or someone else had Power of Attorney that power died with the decedent. The appointment of an Executor or Administrator replaces the Power of Attorney.

Letters of Administration will not allow you access to assets identified as non-probate.

You must keep accurate records. If comprehensive settlement of accounts is required you will be required to submit copies of bank statements and financial records.

WEST VIRGINIA ESTATE APPRAISEMENT & INVENTORY FORMS

When you qualify as Fiduciary you will receive a West Virginia Estate Appraisement and Inventory form and instructions. It will be your responsibility to complete the forms and return them to the Fiduciary Supervisor's office within ninety (90) days of your appointment.

The forms serve two purposes. They identify assets that are controlled by the estate and those that are not.  They also determine whether a Federal Estate Tax Return (Form 706) is required. Assets are identified and valued at date of death.

OPENING AN ESTATE ACCOUNT

In order to access accounts or other financial investments held solely in the name of the decedent or any in which they may have an undivided interest you will need to provide the bank or financial institution with a copy of the death certificate and your Letters of Administration.

A new account will be established in your name as Executor or Administrator of the decedent's estate. Probate assets are transferred to that account. You also will deposit in this account any checks or refunds payable to the decedent, their estate or to you as Executor or Administrator.  Proceeds from the sale of any probate personal property should be made payable as in this example, "Estate of John Doe" and deposited in your estate account.

If you are sure there are enough assets to fully pay all the decedent's debts you can start writing checks to estate creditors from the account.  However if you believe the state may be insolvent (not enough assets to fully satisfy all creditors) do not pay or provide payment to any creditor.  You will need to wait until the  statutory claim period has expired and then provide payment to creditors, pro rata, as provided by state law.  Our staff will provide you with copies of the statute and samples to go by.

TAX  I. D NUMBER (FEDERAL FORM SS4)

When opening an estate account the bank will require you apply for a Federal Tax Identification Number.  To obtain a tax I. D. number call 1-800-829-4933 or visit the local IRS office at 4 Meridian Parkway, Suite 107, Martinsburg (304-263-7625).

NOTICE TO CREDITORS  

Upon return of the inventory and appraisement the required Notice to Creditors will be scheduled for publication in the Martinsburg Journal.  We will advise you when the notice is scheduled to appear and when the claim period will expire. Creditors may notify you directly or they may file a formal claim with our office in which case we will notify you.  It is your responsibility as Fiduciary to negotiate settlement of debts and claims with the creditor.  The claim period will expire 90 days from the first publication.

INSOLVENT ESTATES

When the estate does not have enough funds to fully pay all its debts it is insolvent.

If this is the case you cannot pay any one creditor until the claim period expires,  Then you will distribute estate proceeds among all creditors, pro rata, according to class as outlined in West Virginia Code 44-2-21 and 44-2-22.

As Fiduciary you are not personally liable for debts of the estate. You are responsible for marshaling estate assets and applying for the correct percentage of those assets to each creditor in accordance with the  code section noted in the preceding paragraph.

 TAXES

It is your responsibility as Fiduciary to determine whether or not the decedent had any taxable income for which a return may be due. It is also your responsibility to determine whether or not the decedent has any unpaid real estate/personal property taxes.

The Internal Revenue service requires the filing of a Federal Estate Tax Return (Form 706) for the estate of every citizen of the United States whose gross estate at the time of death was larger than the amount of the federal exemption equivalent.  The chart for exemption equivalents is located with the instructions in your inventory and appraisement booklet.  Please DO NOT ASK OUR STAFF ANY TAX QUESTIONS!

All questions regarding possible estate, gift and capital gain taxes, taxes due on money earned by the estate or returns due to be filed on behalf of the decedent must be directed to a tax professional.

COMPENSATION OF FIDUCIARIES CHANGED

If the decedent died after June 10, 2007 the commission you are allowed has changed.

House bill no. 3270 was passed during the 2007 legislative session.  The Commission now starts at a rate of five (5%) percent for estates up to $100,000. A commission for an estate above $100,000 but not exceeding $400,000 is at the rate of four (4%) percent. A commission for an estate above $400,00 but not exceeding $800,000 are at the rate of two (2%) percent.

Probate real estate is not included unless a Will empowers the Executor to sell and they convert it to cash. However a one (1%) percent commission is now allowed on a non-probate personal property EXCEPT assets specifically held with right of survivorship.

Co-Executors share the commission. A testator may alter the commission by Will.

SETTLEMENT OF ACCOUNTS

Following the ninety (90) day claim period, if all debts, claims and taxes have been paid or provided for, you may proceed with settlement report.  

There are two possible methods of settlement. One is known as a short term settlement and the other is known as a proposed settlement.

Short Form Settlement Reports  are generally used for single beneficiary/heir estates and estates or if  there are multiple  beneficiaries or heirs and they are willing to waive their right to view, inspect, approve, affirm or object to a complete and comprehensive settlement of accounts..

Proposed Settlements Reports will be  required for all other estates and insolvent estates.   These require you to prepare a full accounting of all receipts and disbursements, the balance in the estate, if any, and to whom and in what amount any balance is to be distributed.  If the report does not appear in proper form, does not calculate correctly or otherwise appears irregular, it will be returned to you.  

When filing your settlement report a final notice will be published in the Martinsburg Journal. Final notices are scheduled for publication the first Monday of each month.  Reports are then eligible for approval by the County Commission the first Thursday of the following month.  Copies of proposed settlements are mailed to beneficiaries/heirs.

Provided no exceptions to your report are filed it will be presented to the Berkeley County Commission and recommended for approval.  The Fiduciary will then receive an approval letter advising them to immediately  distribute and residuary assets in the manner outlined in your settlement report.

If a Fiduciary fails to distribute assets when directed to do so they are in violation of an official order entered by the County Commission.  It is then the responsibility of the beneficiaries or heirs to commence legal action against the Fiduciary.

COST OF ADMINISTRATION

Fees charged by the Fiduciary Supervisor payable to the "Berkeley County Fiduciary Fund" for the purpose of financing settlement (WV 44-3A-42) , exclusive of recording, copying and mailing costs are as follows:

           GROSS ESTATE (INCLUDES JOINT ASSETS)         FEE COLLECTED

            Up to $10,000                                                                                $ 25.00

            Over $10,000 to $50,000                                                            $100.00

            Over $50,000                                                                               $175.00

            Recording fees payable  the “Berkeley County Clerk's Office”

           * Will & Executor Appointments                                                  $ 18.00

            *Administrator Appointments                                                      $ 12.00  

            *Miscellaneous Appointments   (Guardian/Trustee/Curator)      $6.00 

             *Inventory and Appraisements                                                       $6.00

             *Disclaimer/Renunciation                                                               $6.00

             *Proposed Settlement Reports                                                   $11.00

             * Short Form Settlement Reports                                                $11.00

(*fee will be higher if document exceeds standard number of  pages)  

               Miscellaneous Fees payable to the "Berkeley County Fiduciary Fund"

               Proposed Settlements (copy and mailing costs)                     $30.00

               Proof of Claim (copy and mailing costs)                                    $10.00

               Letters of Administration                                                              $ 2.00

               Copies                                                                                             $ 1.50 first 2 pages

                                                                                                                        $ 1.00 each additional page

REAL ESTATE

If a person dies with an interest in real estate it will pass one of three ways:

1.      Any real estate titled jointly in the name of the decedent or another person or persons with right of survivorship passes directly to the co-owner(s) and is not controlled by the will or estate.

2.      If there is real estate not titled jointly with right of survivorship and the decedent died leaving a  Will, the decedent’s interest in the real estate passes to the beneficiary or beneficiaries under the Will who are designated to receive it.   When you receive real estate by Will the Will serves as a deed. 

3.      If the decedent died without a Will any  real estate not titled jointly with right of survivorship will  pass to the decedent's heir or heirs at law as provided by the West Virginia Code. the statute in effect on date of death applies.

If the decedent has a Will and it specifically directs and empowers  named Executor(s) to sell probate real estate (that which is not titled jointly with right of survivorship) then the qualified Executor(s) may sell without the consent of the beneficiaries.

If the Executor does not  have power of sale under the Will, only the beneficiaries have the right to sell or transfer probate real estate.

*If there is no  Will probate real estate (that which is not  titled jointly with right of survivorship) will pass directly to the heirs at law as identified  by the West Virginia  Code.  The statute in effect on date of death applies.

If there is more than one beneficiary or heir and they cannot agree as to the sale, transfer or use of probate real estate they will need to retain an attorney and, if necessary, petition the CIRCUIT Court for relief.