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

Before filing: Present the original will and this completed petition to the clerk of the county commission with jurisdiction under W. Va. Code §§ 41-5-4 and 41-5-10. Confirm local filing and qualification procedures. The named Executor must qualify before exercising executor powers under W. Va. Code § 44-1-1.

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. Post-Qualification Notice Log
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 had no mansion house or known place of residence, and the Will devises real estate situated in this county (W. Va. Code § 41-5-4(b)).

☐ The Decedent had no mansion house or known place of residence and the Will devises no real estate; the Decedent died in this county or owned property here at death (W. Va. Code § 41-5-4(c)).

☐ The Decedent died outside West Virginia, and the Will devises or bequeaths property situated in this county (W. Va. Code § 41-5-4(d)).

d. The original Will ☐ was delivered to the Clerk of the County Commission ☐ was delivered to the named Executor by its custodian ☐ is presented herewith. W. Va. Code § 41-5-1 directs a custodian who knows of the death to deliver the Will within thirty days to the clerk or named Executor; the named Executor must then offer it for probate or deliver it to the clerk within a reasonable time.

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 (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 and of each other. The attesting witnesses are:

c. Attesting-witness proof / form of will:
☐ Attesting-witness affidavits made during the Testator's life and preserved with the Will accompany it. Under W. Va. Code § 41-5-15, they have the same probative value as the witnesses' testimony when offered in uncontested probate; they are not admissible in a will contest.
☐ No such affidavits accompany the Will; 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):

☐ Decedent was survived by a spouse: [NAME] (review any elective-share rights under W. Va. Code § 42-3-1).

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 under W. Va. Code § 44-1-3 and request Letters Testamentary after qualification.

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 directs that the Executor serve without bond; Petitioner requests qualification without bond under W. Va. Code § 44-1-8(a), subject to the County Commission's authority to require it after an interested person's application and hearing.
☐ 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 any bond and surety required by the Commission or Clerk.

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 (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 under W. Va. Code §§ 44-1-1 and 44-1-8;

d. Issue Letters Testamentary to Petitioner;

e. Fix any required bond and surety, excuse bond as directed by the Will subject to W. Va. Code § 44-1-8(a), or excuse surety where subsection (b) applies;

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. POST-QUALIFICATION NOTICE LOG

Notice of administration (W. Va. Code § 44-1-14a): The Clerk publishes notice within thirty days after the appraisement is filed, or within 120 days after qualification if no appraisement is filed as required. The published notice states a sixty-day period after first publication for estate claims. The personal representative serves a copy within sixty days after first publication on the people specified in subsection (d), as applicable. An interested person's objection to the personal representative's qualifications, venue, or jurisdiction is due within sixty days after first publication or thirty days after service, whichever is later.

After qualification, record the clerk's publication and the personal representative's service when they occur. This log does not certify service at the time this Petition is filed.

☐ Clerk published the Notice of Administration as required (W. Va. Code § 44-1-14a).
☐ Personal representative served the notice on recipients required by § 44-1-14a(d), as applicable, by first-class mail or personal service.

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)
☐ Attesting-witness affidavits preserved with the Will (W. Va. Code § 41-5-15), if any
☐ Death certificate, if requested by the Clerk
☐ Oath of Executor at qualification (W. Va. Code § 44-1-3)
☐ Bond with or without surety at qualification, if required (W. Va. Code §§ 44-1-1, 44-1-8)
☐ Proposed Letters Testamentary, if requested by the Clerk
☐ Filing/recording fees

After qualification: Prepare the estate appraisement under W. Va. Code § 44-1-14 and any required nonprobate inventory under W. Va. Code § 11-11-7. Complete the notice steps under W. Va. Code § 44-1-14a.

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 (attesting-witness affidavits): https://code.wvlegislature.gov/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 § 44-1-8 (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/