Petition for Probate of Will and for Letters Testamentary (West Virginia)

IMPORTANT: THIS IS A PREPARATION GUIDE — NOT THE OFFICIAL COURT FORM

In West Virginia, a will is admitted to probate before the County Commission or the Clerk
of the County Commission (W. Va. Code §§ 41-5-10, 44-1-1), not by petition to a circuit
judge in the ordinary case. The proponent presents the original will to the County Clerk,
who (or the County Commission) may admit it to probate, and the named Executor qualifies by
oath and (where required) bond before letters testamentary issue. At qualification the
Executor must file an Affidavit/List of Heirs, Distributees, Devisees and Legatees (W. Va.
Code § 44-1-13). Procedure varies by county; check with the County Clerk's office. Local
probate forms are available from the Clerk of the County Commission of the county of probate.
Do not file this document in place of the Clerk's required forms.

PETITION FOR PROBATE OF WILL AND FOR LETTERS TESTAMENTARY

BEFORE THE COUNTY COMMISSION OF [COUNTY] COUNTY, WEST VIRGINIA (CLERK OF THE COUNTY COMMISSION)

TABLE OF CONTENTS

1. Caption and Case Information
2. Petitioner / Proponent Information
3. Decedent Information
4. Basis for Jurisdiction and Venue
5. The Will Offered for Probate
6. Devisees, Legatees, and Heirs at Law
7. Nomination and Qualification of Executor
8. Bond / Surety
9. Prayer for Relief
10. Verification
11. Notice and Certificate of Service
12. Attachments Checklist

1. CAPTION AND CASE INFORMATION

Estate / Fiduciary No.: [____________________________________]

Date of Probate Appointment (if set): [__/__/____] Time: [____]

2. PETITIONER / PROPONENT INFORMATION

Name: [PETITIONER FULL LEGAL NAME]
Address: [STREET ADDRESS], [CITY], West Virginia [ZIP CODE]
Telephone: [________________________________]
Email: [________________________________]
Capacity: Petitioner is the Executor named in the Last Will and Testament of the Decedent and offers the Will for probate and moves for its admission under W. Va. Code § 41-5-10.

3. DECEDENT INFORMATION

4. BASIS FOR JURISDICTION AND VENUE

a. The Decedent died on [__/__/____].

b. ☐ The Decedent resided in [COUNTY] County, West Virginia at the time of death; this Will is therefore properly offered for probate before the County Commission (or Clerk) of this county (W. Va. Code § 41-5-4).

c. ☐ The Decedent was a nonresident who owned real property in this county; venue lies here (W. Va. Code § 41-5-4).

d. The original Will ☐ was delivered to the Clerk of the County Commission within 30 days after the Decedent's death ☐ is presented herewith (W. Va. Code § 41-5-1).

e. The Decedent died testate, leaving a Last Will and Testament dated [__/__/____] (and codicil(s) dated [__/__/____], if any).

f. The County Commission, or the Clerk thereof in vacation of the Commission, may hear and determine this motion and admit the Will to probate (W. Va. Code § 41-5-10).

5. THE WILL OFFERED FOR PROBATE

a. The original Last Will and Testament of the Decedent, dated [__/__/____], accompanies this Petition and is offered for probate and recordation in the will book (W. Va. Code § 41-5-10).

b. Execution and witnesses. The Will was executed in compliance with W. Va. Code § 41-1-3: it is in writing, signed by the testator (or by some other person in the testator's presence and by the testator's direction) in such manner as to make it manifest that the name is intended as a signature, and such signature was made or acknowledged in the presence of at least two competent witnesses present at the same time, who subscribed the will in the presence of the testator. The attesting witnesses are:

c. Self-proving / form of will:
☐ The Will is self-proved: the attesting witnesses made and subscribed affidavits before an officer authorized to administer oaths, preserved with the Will, which are admissible in evidence and have the same probative value as if the affiants appeared and testified before the clerk (W. Va. Code § 41-5-15). (Such affidavits are not admissible where there is a contest over the Will.)
☐ The Will is not self-proved; proof will be made by the testimony of an attesting witness.
☐ The Will is wholly in the handwriting of the testator (holographic) and signed by the testator (W. Va. Code § 41-1-3); proof will be made as required by law.

d. To the best of Petitioner's knowledge and belief, the Will has not been revoked and is the last Will of the Decedent.

6. DEVISEES, LEGATEES, AND HEIRS AT LAW

Devisees and legatees named in the Will:

Heirs at Law (persons who would take by intestate succession, W. Va. Code § 42-1-1 et seq.):

☐ Decedent was survived by a spouse: [NAME] (note elective-share and exempt-property rights under W. Va. Code § 42-3-1 et seq.).

7. NOMINATION AND QUALIFICATION OF EXECUTOR

a. The Will nominates [EXECUTOR FULL LEGAL NAME], whose address is [________________________________], as Executor.

b. A person appointed Executor has no powers as Executor until qualified by taking the oath and giving any required bond (W. Va. Code § 44-1-1). Petitioner is willing and qualified to serve and is not disqualified.

c. Upon admission of the Will, Petitioner will take the oath of Executor (W. Va. Code § 44-1-3) and, upon qualification, the Clerk/Commission shall issue Letters Testamentary (W. Va. Code § 44-1-6).

d. ☐ One or more co-Executors are also named: [________________________________]. Each ☐ joins in this Petition ☐ declines to serve.

8. BOND / SURETY

a. Bond and surety:
☐ The Will waives bond / directs that the Executor serve without bond or surety; Petitioner requests qualification without surety as directed by the Will (the County Commission retains discretion to require bond, W. Va. Code § 44-1-6).
☐ Petitioner is the sole beneficiary of the Decedent; no surety is required on the Executor's bond unless the Will directs otherwise (W. Va. Code § 44-1-8).
☐ The Will does not waive bond; Petitioner will furnish bond with surety as required, in an amount fixed by the Commission/Clerk (W. Va. Code § 44-1-6).

b. Estimated value of the probate estate (basis for bond amount): $[________________]

9. PRAYER FOR RELIEF

WHEREFORE, Petitioner respectfully requests that the County Commission (or the Clerk thereof):

a. Admit the Last Will and Testament of the Decedent dated [__/__/____] (and any codicil) to probate and order it recorded in the will book (W. Va. Code § 41-5-10);

b. Find that the Decedent died testate and that the Will was duly executed and proved;

c. Permit Petitioner to qualify as Executor upon taking the oath (W. Va. Code § 44-1-3) and giving any required bond (W. Va. Code § 44-1-6);

d. Issue Letters Testamentary to Petitioner;

e. Fix bond with or without surety, or excuse surety as directed by the Will or under W. Va. Code § 44-1-8;

f. Record the affidavit of heirs, distributees, devisees, and legatees (W. Va. Code § 44-1-13); and

g. Grant such other and further relief as is just and proper.

10. VERIFICATION

I, [PETITIONER FULL LEGAL NAME], being first duly sworn, state that I am the Petitioner / proponent of the Will; that I have read the foregoing Petition (and the accompanying affidavit of heirs/devisees under W. Va. Code § 44-1-13); and that the statements therein are true and accurate to the best of my knowledge and belief.

Petitioner Signature: ______________________________________

Printed Name: [PETITIONER FULL LEGAL NAME]

Subscribed and sworn to before me on [__/__/____].

Notary Public / Clerk of the County Commission: ______________________________________ My commission expires: [__/__/____]

11. NOTICE AND CERTIFICATE OF SERVICE

Notice of administration (W. Va. Code § 44-1-14a): Upon qualification, the Clerk publishes and the personal representative gives a Notice of Administration of the Estate. Beneficiaries and heirs may file objections, and creditors must present claims, within the time stated in the notice (generally 90 days after the date of first publication; objections to the Appraisement/accounting within statutory limits). The Clerk also mails notice to beneficiaries named in the Will (W. Va. Code § 41-5-2).

☐ Notice of Administration published as required (W. Va. Code § 44-1-14a).
☐ Notice mailed to the surviving spouse, devisees, legatees, and heirs at law at their last known addresses.

Signature: ______________________________________
Printed Name: [PETITIONER / ATTORNEY NAME]
West Virginia State Bar No.: [________________] (if applicable)
Address: [________________________________]
Telephone: [________________________________]
Email: [________________________________]

12. ATTACHMENTS CHECKLIST

☐ Original Last Will and Testament (and any codicil)
☐ Affidavit of heirs, distributees, devisees, and legatees (W. Va. Code § 44-1-13)
☐ Self-proving affidavits of attesting witnesses (W. Va. Code § 41-5-15), if any
☐ Certified copy of Death Certificate
☐ Oath of Executor (W. Va. Code § 44-1-3)
☐ Bond with or without surety, as required (W. Va. Code §§ 44-1-6, 44-1-8)
☐ Appraisement of estate (W. Va. Code § 44-1-14) and Nonprobate Inventory (W. Va. Code § 11-11-7)
☐ Notice of Administration of the Estate (W. Va. Code § 44-1-14a)
☐ Proposed Letters Testamentary — Clerk-issued
☐ Filing/recording fees

SOURCES AND REFERENCES

• W. Va. Code § 41-5-1 (delivery of will to clerk): https://code.wvlegislature.gov/41-5-1/
• W. Va. Code § 41-5-4 (jurisdiction and venue): https://code.wvlegislature.gov/41-5-4/
• W. Va. Code § 41-5-10 (motion for probate): https://code.wvlegislature.gov/41-5-10/
• W. Va. Code § 41-5-15 (proof of will; self-proving affidavits): https://codes.findlaw.com/wv/chapter-41-wills/wv-code-sect-41-5-15/
• W. Va. Code § 44-1-1 (executor has no powers before qualifying): https://code.wvlegislature.gov/44-1-1/
• W. Va. Code § 44-1-6 (bond and oath): https://code.wvlegislature.gov/44-1-6/
• W. Va. Code § 44-1-8 (when executor not to give bond): https://code.wvlegislature.gov/44-1-8/
• W. Va. Code § 44-1-13 (affidavit of heirs/devisees): https://code.wvlegislature.gov/44-1-13/
• W. Va. Code § 44-1-14a (notice of administration): https://code.wvlegislature.gov/44-1-14a/