Berkeley County Commission

is the process that determines whether a Will is valid and/or the process of estate settlement. Probate protects the right of creditors to claim against an estate and insures remaining assets, if any, 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 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 in the administration of wills and estates. The 1982 legislation required use of the optional procedure in Kanawha County. Berkeley County adopted this code section in 1987. A number of counties now use 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 Code is transferred to the Fiduciary Supervisor.

OUR STAFF

Assists in the process of probate and estate settlement. We do not provide legal advice. Most estates can be settled in less than a year and generally do not require an attorney. Barring extraordinary circumstances the only expert guidance you may find necessary is a tax professional.

OFFICE LOCATIONS AND HOURS

We are located in “The Historic Berkeley County Courthouse” at the corner of King and Queen Streets in downtown Martinsburg. Regular office hours are 9:00 A.M. until 5:00 P.M. Monday – Friday. Please allow 30 minutes to an hour for your visit. You should arrive no later than 4:15 P.M.

GETTING STARTED

Carefully read the following to prepare for qualification and appointment as Personal Representative of a decedent’s estate. Although you may be named to serve as executor/rix by a Will you do not have the legal right to act in that capacity until we admit the Will to probate and you’ve signed official documents for which security may or may not be required. When death occurs you should begin the probate process within 30 days.
Immediate appointment of an estate representative will not be possible in every situation. Depending on estate circumstances qualification requirements will vary.

BEGINNING PROBATE

Our staff will require:

A state issued death certificate or a copy of the application for the death certificate signed by the funeral director. If death occurred outside of Berkeley County a certified copy is required. The certificate must list the date of death, the decedent’s social security number, marital status and residence at death.

If the decedent left a Will/Codicil bring the original(s), not a copy. In some instances witness depositions will be required before the document(s) is admitted to probate.

If there is a valid Will/Codicil we need the current address of each beneficiary named and their relationship, if any, to the decedent. Include the address and contact information for any charitable organizations named. Additional information may be required for any deceased beneficiary.
OR
If there is no Will we need the name, current address and relationship to the decedent of each heir as provided by “West Virginia Intestate Succession Law” (see page 4).

An approximate value of the probate estate. Include all personal property owned solely by the decedent, all real estate and other assets titled solely in the name of the decedent and all assets in which the decedent may own an undivided interest (1/2, 1/3, 1/4 etc.). If bond is required the value of probate real estate will not be factored in unless you qualified as a named executor/rix under a Will and the Will directs or empowers you to sell.

Costs of Administration: Range from $41.00 to $202.00 + depending on whether there is a Will/Codicil and on the gross value of the estate (see page 5). The cost of a surety bond, if required, is not included. Costs of administration and bonding are reimbursable from probate estate assets as they may become available.

WHO WILL BE ALLOWED TO SERVE AS PERSONAL REPRESENTATIVE?

If there is a Will the person(s) named as executor/rix will be entitled to serve. If a named executor/rix is unable or unwilling to serve the residuary beneficiaries under the Will are expected to nominate an administrator/rix CTA.
OR
If there is no Will and a spouse survives he or she is entitled to serve. If no spouse survives and there is more than one heir at law the *signed, notarized consent from a majority of the heirs will be required (see page 4 to determine the heirs at law).

WILL A SURETY BOND BE 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 there is a Will but “surety”, “security” or “bond” was not waived, or the Will did not name an executor/rix, or if someone other than a named executor/rix wants to serve, a surety bond is required.

BONDING OPTIONS

If you are a West Virginia resident there are two options:

bring another person who owns or has sufficient equity in real estate who is willing to sign your bond as surety. If their real estate is located in another county in West Virginia they need to bring a “justification of surety” from the County Clerk’s Office in that county or,

you may purchase corporate surety through an insurance agency licensed by the State of West Virginia and conducting business in the State.

If bond is necessary and you reside outside of West Virginia corporate surety is required.

*consents are not required if 30 days have passed since death.

DISTRIBUTION OF PROBATE ASSETS – WHEN THERE IS NO WILL - WEST VIRGINIA INTESTATE SUCCESSION LAW

If the decedent is survived by a spouse and the decedent has no children or descendants of children from another marriage or relationship the surviving spouse inherits 100% of the estate.

If the decedent is survived by a spouse and they have children together and the decedent also has children from another marriage or relationship, the surviving spouse will inherit 50% of the estate and all children of the deceased share the remaining 50%, by representation*.

If the decedent is survived by a spouse and they have children together and the surviving spouse has children from another marriage or relationship, the surviving spouse inherits 60% of the estate and all children of the deceased share the remaining 40%, by representation*. Children of surviving spouse from a previous marriage or relationship receive nothing.

If no spouse survives the descendants of the decedent share 100% of the estate, by representation*.

If no spouse survives, no children or descendants of children survive the surviving parent(s) of the decedent inherit 100% of the estate.

If no spouse, no children, no descendants of children and no parent(s) survive the descendants of the parents receive 100% of the estate, by representation*.

If no spouse, no children, no descendants of children, no parent(s) and no descendants of parents survive the maternal grandparent(s), or their descendants, inherit 50% and the paternal grandparent(s), or their descendants, inherit 50%.

If the maternal and the paternal grandparents are all deceased and leave no surviving descendants, the entire estate passes to the State of West Virginia. This is an extremely rare occurrence.

*Representation: first-generation descendants of decedent would share equally in the 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.

PROBATE FEE SCHEDULE

Your first two administrative costs are due the day you are appointed estate representative. The combined costs depend on whether there is a Will/Codicil and the value of the gross estate. They range from $41.00 to $202.00 +. Your check will be payable to the "Berkeley County Clerk". Do not fill in the check amount before arriving in our office:

APPOINTMENT FEE:(WV Code 44-3A-42)

Gross Estate(includes joint assets)	Required Fee

Estates up to $10,000	$ 25.00
Estates over $10,000 but not exceeding $50,000	$100.00
All Estates over $50,000	$175.00
Trustee/Miscellaneous Appointments	$ 25.00

RECORDING FEE:

Wills/Codicils(including orders/depositions)	$11.00*
Executor/rix Appointments	$16.00*

Administrator/rix Appointments	$16.00*

Trustee/Miscellaneous Appointments	$11.00*

LATER - Fees collected by Fiduciary Staff and payable to the "Berkeley County Clerk"

RECORDING FEE:

Inventory & Appraisement of Estate (6.01)	$11.00*
Settlement of Accounts (all forms)	$11.00*
Disclaimer/Renunciation	$11.00*

Miscellaneous Fees payable to the "Berkeley County Clerk"

Proof of Claim (copy/mail)	$10.00
Letter of Administration	$5.00 each
Settlements (Receipts/Disbursements) copy/mail	$ 30.00
General Copies	$1.50 1 or 2 pages, then
	$1.00 each additional page

(*up to five pages - $1.00 will be added for each page thereafter)

Request certified & exemplified (triple seal) copies from the Berkeley County Clerk's Office

GENERAL OVERVIEW OF THE PROBATE PROCESS

At the county level the estate of a deceased person is administered in a 3-step process:

The Appointment of a personal representative, or fiduciary, to manage the estate. The PR is called an Executor/rix if named as such by a Will. They are called an Administrator/rix if there is no Will. If the Will does not name an executor/rix or if someone other than a named executor/rix qualifies they are Administrator/rix CTA.

The Appraisement of the estate. When you are appointed you receive West Virginia Estate Appraisement and Inventory forms. The forms identify assets of the decedent that are controlled by the estate, those that are not and their value as of the date of death. They also determine when a Federal Estate Tax Return (Form 706) is required (currently most estates do not exceed the amount of the federal exemption equivalent and therefore are not required to file a 706 (if in doubt see a tax professional). Important Note: Assets titled jointly in the name of the decedent "or" another person(s) with "right of survivorship", assets and life insurance paid to named beneficiaries and assets designated as "payable on death" are considered non-probate and will not be controlled by a Will or the estate. Assets titled in this manner pass immediately at death to the co-owner(s), named beneficiary or payee. You must complete and return the appraisement forms within 90 days. Failure to comply with the requirement to return the appraisement within 90 days constitutes a late fee and may result in legal action and fines. When the completed appraisement forms are returned to our office the 6.01 portion will be recorded with the Berkeley County Clerk. We will then schedule for publication in the Journal newspaper the required Notice to Creditors. Publication begins a 90 day period that allows creditors to file claims against the estate. You will be notified of any claim filed with our office. It is your responsibility as fiduciary to interact with creditors on behalf of the estate.

Settlement – When the 90 day claim period expires, provided all debts, claims and other issues relative to the estate are paid, provided for and resolved, a short form settlement (affidavit and waiver of final settlement) may be submitted. You are provided a short form that must be signed in the presence of a Notary Public. Residuary estate beneficiaries are also required to sign this form in the presence of a Notary. Beneficiaries who have received a specific bequest of money or property are not required to sign. If the residuary beneficiaries do not agree to sign a short form you are required to submit a proposed final settlement of accounts (receipts and disbursements). This form is a comprehensive statement of accounts reporting all estate income/activity, all disbursements and the balance available for distribution. If the estate is insolvent (insufficient assets to fully satisfy all creditors) a proposed final settlement of accounts is required. Assets of an insolvent estate are distributed among all creditors, pro rata and according to class, as provided by state law (West Virginia Code 44-2-21 and 44-2-22).

When you have filed a settlement form our staff will schedule for publication in the Journal a required Notice of Settlement. Provided no objections are filed the settlement is eligible for approval by the Berkeley County Commission on the first Thursday of the following month.

If a short form settlement is submitted assets may be distributed to heirs/beneficiaries after the document has been filed with our office.

If a proposed final settlement of accounts is submitted do not distribute any assets until you receive a letter from our office confirming the County Commission approved your accounting.

When the County Commission issues the Order approving a short form or proposed final settlement of accounts the estate is considered closed and your appointment and authority as fiduciary is terminated.

Occasionally an estate will have circumstances which may prolong final settlement. Fiduciaries for those estates are required to file interim or annual accountings until the estate can be finalized.

Estate representatives are allowed a commission for administering an estate. If the decedent died June 11, 2007 or after (WV Code 44-4-12a) the formula for computing the rate of compensation has changed. Our staff can provide you a compensation rate schedule. However a decedent may have altered the amount of compensation by Will.

As previously stated the above is a general overview of the probate process and cannot possibly consider every factual situation. Issues can arise that may require you to seek the advice of an attorney or may require assignment of the estate to a Fiduciary Commissioner (Judge). We strongly advise estate representatives to keep an open line of communication with all persons having a beneficial interest in the estate.

If you have any questions regarding this process of estate administration please do not hesitate to call on our staff.

*Reference Resources:*	*West Virginia Code – Volume 12 – Chapters 41, 42, 43, & 44*
	*West Virginia Department of Tax & Revenue*

Services

Public Safety

Prosecuting Attorney

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, x 6101

Janet C. Holzhauser, x 6100

Judy C. DeHaven, x 6102

Supervisor

Deputy

Coordinator

PROBATE....