Legal Question in Wills and Trusts in West Virginia

Re: after a son passes

There are several components of your situation, each must be evaluated in connection with the others. A resident of West Virginia's estate passes according to his or her will. If there is no will, then according to the rules of intestate succession. If not married, 100% goes to the children of the deceased. An adult child can qualify as Administrator, but will have to post bond. As Administrator, he or she assumes a fiduciary responsibility to well and truly administer the estate. This means he or she must collect the assets, sell the personal property and distribute to the heirs. If an heir is a minor, then a guardian must be appointed to take the assets for the minor(s) and not distribute to them until majority. Payment from a first party insurance policy is an asset of the estate and used to pay claims against the probate estate. Payment from a third party insurance company is not. The settlement of a wrongful death claim from a third party insurance companyis distributed according to the wrongful death statute and not through probate. This would include underinsurance settlement from the decedent's own carrier. Wrongful Death distribution may include "those persons who are dependent upon the deceased for support" Since one child is a minor and since there may be a significant other dependent upon the decedent, there must be a hearing before the Circuit Court for the judge to determine how the proceeds of the settlement are distributed. The wrongful death claim includes a lot more than debts and final expenses. Debts are a claim against the estate and the wrongful death proceeds are not available to pay these. This is required. If the insurance company merely gives the settlement to the adult child or to the Administrator of the estate without court approval, it can be compelled to pay again when the minor reaches majority. In all events, it would appear that whoever qualifies as Administrator would be strongly urged to consult a lawyer to manage the settlement and distribution of the wrongful death payment as well as the administration of the estate. Again, they are separate.