When someone dies, the legal process of transferring the deceased's property to his or her heirs is referred to as probate. During the probate process the deceased's property is collected, applicable debts and taxes are paid from the estate, and then the remaining property is distributed.
If the deceased dies testate (with a valid will), then the estate will be distributed according to the terms of the will. However, if the deceased dies intestate (without a valid will) then the property will be distributed according to the laws of intestate succession. The chart below outlines West Virginia's laws of succession.
| Code Section | West Virginia Code section 42-1-3 & 42-1-3a: Intestate Succession |
| Share of the Deceased's Surviving Spouse  | The surviving spouse receives the entire estate if:
The surviving spouse receives 3/5ths of the estate if the surviving spouse has one or more children who aren't descendants of the deceased. The surviving spouse receives half of the estate if one or more of the deceased's children aren't descendants of the surviving spouse. |
| Share of Heirs Other then the Surviving Spouse  | Any part of the estate that doesn't pass to the surviving spouse (or if the deceased dies without a spouse) passes in the following order until someone is alive to inherit:
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| No Taker | If there isn't anyone alive to inherit under the statutes illustrated above, then the estate passes to the state of West Virginia. |
Avoiding Probate
It is important to note that not all of a deceased person's property has to pass through the probate process. For example, property that is jointly owned, property with a named beneficiary upon death, revocable living trusts, and gifts all pass outside of probate. Because the probate process can take a long time and can be expensive, most people will try to avoid probate when estate planning. For more information see FindLaw's article Avoiding the Probate Process.
Estate Taxes
An estate tax is a tax on your right to transfer property at your death. Most states, including West Virginia, don't currently collect an estate tax. Before January 1, 2005 West Virginia did collect an estate tax that was in proportion to the overall federal estate tax bill, but when the federal tax law changed West Virginia's estate tax was effectively eliminated. However, estates in West Virginia may still be subjected to the federal estate tax.
Additional Resources
State laws change frequently. For case specific information regarding West Virginia's probate and estate tax laws contact a local tax attorney or estate planning lawyer.
