Legal Question in Wills and Trusts in West Virginia

Time frame to file a claim & particulars

I am not sure where to even start, I live in Florida, and my Grandmother passed away recently in West Virginia. She lived on the homestead that is currently going into probate, since the 70's as part of my Grandfathers will, She has no possession of the property, just the ability to use it until her death. She was a second marriage Grandfather inherited property from recently deceased wife in the 50's, will was drawn to exclude her inheritance to this property at his passing, but leave it to the children from the first marriage. I need a few probate questions answered for your state, first, My father

was one of the legal heirs but he passed away around 4-5 years agoleaving myself & 5 other siblings as the heirs to this part of his estate,

he had no estate or Will at his passing, only bills, we did not consider this

property at his passing because Grandma was still alive. I am being

told we need to file a claim against the estate, and that there is a

time period to do so?

What is that time period? What documents are required to file the

claim? Can a claim be filed via mail, or must someone physically

present the claim to the local court for the property? There is a probate

atty involved, Grandma passed away the seco

Asked on 11/15/05, 7:23 am

1 Answer from Attorneys

Thomas Zimmerman Zimmerman Law Office
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Re: Time frame to file a claim & particulars

You must have a lawyer look at the probate records and the deeds. Any comment requires assumptions. One small incorrect assumption and every thing changes. Generally speaking, title of real estate passes at the time of the death of the decedent. It does not require a claim to be filed against an estate. Your information suggests that your grandfather devised a life interest in real property to his second wife who lived there until her death. If so, your father, as on of the devisees of your grandfather held an undivided remainderman interest in the real estate at the time of his death. It was not a possessory interest because of the life estate in his step-mother. His interest vested in his heirs or devisees at the time of his death. Any real interest, whether possessory or not, interest held by a decedent, as I said earlier, vests in his heirs upon his death. The interest is subject to administration to pay debts of the decedent. The personal representative cannot sell the property to pay charges against the estate unless there is express power in the will of the decedent or consent is secured from the Circuit Court of the county where the property is located. It could be, therefore, that you, as heir to your father's estate, hold an undivided interest in real estate. Any such interest could be sold or a partition suit brought to sell all of the interests together with distribution of the proceeds of sale to the respective owners according to their pro-rata interests. You should have more questions and should consult a lawyer about protecting your interests. There are real estate tax issues in fractional ownership situations as well. I find that usually one co-parcener, as such an owner is referred to, takes the lead and determines who the owners are and goes around buying up the interests. If all the owners cannot be found or some won't or cannot sell, the partition suit is indicated.

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11/16/05, 8:10 am

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