Senior Legal Aid

What is probate?

It has nothing to do with probation, which is part of the criminal justice system.

Instead it is the legal process for transferring all property owned by a person after they die. Simple as that.

With or without a Last Will and Testament, the money, real estate, personal property, IRA funds, etc. owned by a deceased person need to be transferred to the next owner.

With a will, the terms listed in it control how everything is distributed. Without a will, state law controls who receives what. Plus, on certain accounts, the beneficiary designations will control.

The legal process does involve having a person or financial institution act as executor of the will (or administrator if there is no will).

The executor/administrator is responsible for listing the estate property involved and completing two important reports. After that, the estate can be closed and the property distributed.

But due to inactivity, some estates have not been officially closed.

Unfortunately, that leaves a lot of questions about what happened and can cause property ownership issues at a later time.

A recent West Virginia law which went into effect in May 2019, WV Code §44-2-19(a), requires that estates without activity for three years or more shall be closed officially by approval of the county commission.

Around the state, County Clerks’ offices are working on having inactive estates closed.

Some County Clerks are notifying by letter all of the executors, heirs, and creditors listed in the first estate report, the appraisement, about the potential closure and deadline for further activity.

For those handling an estate that hasn’t been fully resolved and closed and there has been no activity for three years or more, it’s appropriate to find a way to resolve the open matters as soon as possible. Completing the final report for the estate is required by law to do that.

If an attorney or other person is handling an estate with no activity for at least three years, the new closure law is a way for known or potential heirs to urge the attorney or executor to focus more attention on it.

Going forward, estates will be subject to the same requirement to be closed by official action if there is no activity for at least three years.

Many heirs wonder how much information they are to be provided while the estate is open. There is no legal requirement for doing that, but the will and any related documents are placed in the public records at the courthouse and can be viewed by anyone. Some counties also have online records, including wills and estate reports.

Those working in the County Clerk’s office can answer questions about procedures and requirements but may not provide a legal opinion on a specific situation.

If an estate has been closed, state law allows it to be reopened by the executor or administrator under appropriate circumstances.

Questions about property and other legal issues can be answered by calling 800-229-5068, the helpline for West Virginia Senior Legal Aid. The caller must be age 60 or over to receive this free assistance.

Deb Miller, J.D., is a volunteer with West Virginia Senior Legal Aid.

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