Where the estate is opened.
Only if the statute's conditions are met. Read the section below.
Living trust or probate
A revocable living trust holds assets you title in the trustee's name. You can serve as trustee while you are able.
At death, the successor trustee handles those assets. Property you leave in your own name can still go through the probate court. A pour-over will sends leftover assets into the trust, and those leftover assets may pass through probate first.
The probate path
In West Virginia, the estate is opened in the County Commission.
Section 44-4-12a sets personal representative commissions and states that the county commission may deny, reduce, or increase them. Section 44-4-12 states that the fiduciary commissioner, in stating and settling the account, shall allow the fiduciary reasonable expenses and, except where otherwise provided, a reasonable compensation. A small estate affidavit under section 44-1A-2 is tendered to the clerk of the county commission, or the fiduciary supervisor of that clerk, of the county which would have probate jurisdiction.
Source: West Virginia Code section 44-4-12a
Fees
In West Virginia, probate compensation is a statutory commission.
Section 44-4-12a allows personal representatives reasonable expenses and commissions upon the amount of all the personal estate which is subject to administration, including the income from the personal estate, that is received and accounted for by them, and upon the proceeds of real estate that is sold, as follows: for the first $100,000, five percent; all above $100,000 and not exceeding $400,000, four percent; all above $400,000 and not exceeding $800,000, three percent; and all above $800,000, two percent. They are also allowed one percent on the value of real estate that is not sold, and one percent on all property that is not subject to administration and that is includable for computing the federal estate tax. No commission is allowed on joint and survivorship property, whether real or personal. Valuation of real estate sold is the gross proceeds of sale, and for all other property the fair market value as of the date of death. A testator may deviate by express language in the will. Where the personal representative is a lawyer who renders professional services, compensation for those professional services in addition to a commission shall not be allowed.
Source: West Virginia Code section 44-4-12a
Small estate
West Virginia's small-estate figure on this page is $50,000 when the statute's conditions are met.
The affidavit must state that the entire personal probate estate, wherever located, consists only of small assets and that the aggregate fair market value of all of the small assets does not exceed $50,000. If the successor is nominated in the will, at least 30 days must have elapsed and no personal representative application may be pending or granted. If the successor is not nominated, or the decedent died intestate, at least 60 days must have elapsed, no application may be pending or granted, and no small-estate affidavit may have been filed by a nominated successor. On the same site, section 44-1A-1 still defines a small estate as probate personal property and assets not exceeding $50,000 and West Virginia real estate or interests not exceeding $100,000, excluding nonprobate real estate. Those two official sections do not use the same real-property rule.
Source: West Virginia Code section 44-1A-2
Questions
The answers use the same statute and court pages as the sections above.
Does a living trust avoid probate in West Virginia?
A revocable living trust holds the assets you title in the trustee's name. The successor trustee handles those assets. Property still titled in your own name can be a probate matter. A pour-over will can send leftover assets into the trust, and those leftover assets may still pass through probate first.
What is the small-estate procedure in West Virginia?
The affidavit must state that the entire personal probate estate, wherever located, consists only of small assets and that the aggregate fair market value of all of the small assets does not exceed $50,000. If the successor is nominated in the will, at least 30 days must have elapsed and no personal representative application may be pending or granted. If the successor is not nominated, or the decedent died intestate, at least 60 days must have elapsed, no application may be pending or granted, and no small-estate affidavit may have been filed by a nominated successor. On the same site, section 44-1A-1 still defines a small estate as probate personal property and assets not exceeding $50,000 and West Virginia real estate or interests not exceeding $100,000, excluding nonprobate real estate. Those two official sections do not use the same real-property rule.
How are probate fees set in West Virginia?
Section 44-4-12a allows personal representatives reasonable expenses and commissions upon the amount of all the personal estate which is subject to administration, including the income from the personal estate, that is received and accounted for by them, and upon the proceeds of real estate that is sold, as follows: for the first $100,000, five percent; all above $100,000 and not exceeding $400,000, four percent; all above $400,000 and not exceeding $800,000, three percent; and all above $800,000, two percent. They are also allowed one percent on the value of real estate that is not sold, and one percent on all property that is not subject to administration and that is includable for computing the federal estate tax. No commission is allowed on joint and survivorship property, whether real or personal. Valuation of real estate sold is the gross proceeds of sale, and for all other property the fair market value as of the date of death. A testator may deviate by express language in the will. Where the personal representative is a lawyer who renders professional services, compensation for those professional services in addition to a commission shall not be allowed.
Sources
These are the statute and court pages used above.