West Virginia Code

W. Va. Code § 41-5-5 (2026)

Procedure for probate in solemn form

✓ current as of May 2026

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CHAPTER 41. WILLS.

Article 4

All Articles

ARTICLE 5. PRODUCTION, PROBATE AND RECORD OF WILLS.

§41-5-5. Procedure for probate in solemn form.

The county court, sitting in a regular or special session, shall hear and determine all proceedings to admit a will to probate in solemn form. Upon or at any time after the production of a will, any person may offer the will for probate in solemn form by filing in the county court having jurisdiction a petition duly verified by affidavit, stating when and where the testator died, his last place of residence, the nature of his estate, the relationship to decedent and place of residence of each of his heirs at law and distributees, surviving wife or husband, and each of the beneficiaries of the will. Process shall issue against and be served upon all persons interested in the probate of the will to appear at a day named, and show cause why the will should not be admitted to probate. A guardian ad litem for any person under disability shall be appointed, upon whom such process may be served, and such process shall be served upon parties resident in the state, and proceedings by order of publication or service in person without the state shall be had against all nonresidents and against all persons to the petitioner unknown, in the same manner as process is served and such proceeding had in suits in equity. At any time after the petition is filed and before final order is made admitting or refusing to admit the will to probate any person desiring to contest the will may appear and file a notice of contest in the proceeding, stating concisely the grounds of such contest. Thereupon, process shall issue on such notice and be served upon any person whose interest will be adversely affected by a refusal to admit the will to probate to appear and defend his interest. Any person sui juris may waive service of process upon the petition or notice, and the guardian ad litem of any person under disability may waive service of any such process, upon such person and upon himself Process upon the petition or notice shall be served at least ten days before the return day thereof. Any petition or notice of contest hereunder may be filed in the office of, process be issued, served and returned, and a guardian ad litem appointed by, the clerk of the court in the vacation of the court, and the proceeding may be matured and set down for hearing.

Notes of Decisions

Cited in 5 cases (2 in the last 5 years), 1981–2026 · leading case: In Re Est. of Boote, 198 S.W.3d 699 (Tenn. Ct. App. 2005).

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In Re Est. of Boote, 198 S.W.3d 699 (Tenn. Ct. App. 2005). · cites it 2× “W. Va.Code § 41-5-5 ("At any time after the petition [to admit a will to probate in solemn form] is filed and before final order is made admitting or refusing to admit the will to probate any person desiring to contest the will may appear and file a notice of contest in the…”

Davey v. Est. of Haggerty, 637 S.E.2d 350 (W. Va. 2006). · cites it 4× “" [1] In contrast to the ex parte procedures for probating a will, probate in solemn form, as provided in W. Va.Code § 41-5-5 (1923), requires that notice be given to all heirs and persons having an interest in the will.”

State Ex Rel. J. M. v. Taylor, 276 S.E.2d 199 (W. Va. 1981). “Examples of legislative recognition of juvenile incapacity are statutes requiring guardians ad litem for infants: in civil actions when a minor is a defendant, Code, 56-4-10; if a minor is plaintiff in a lawsuit (next friend or guardian) §56-4-9; in eminent domain proceedings…”

Dye v. Cnty. Comm'n of Marion Cnty. (W. Va. 2021). · cites it 2× “o admit such will to probate, or before such court in any ex parte proceeding to probate a will made in the court in the first instance before it has made an order admitting or refusing to admit the will to probate, and file a notice of contest of the probate of the will,…”

Michael Shawn Steffen v. Scott Caserta, as Clerk of the Cnty. Comm'n of Cabell Cnty.. (W. Va. 2026). “tive to any personalty or real estate located or situate within this state has been proved or probated outside of this state by another state or jurisdiction within the United States of America, an authenticated copy thereof and the certificate of probate thereof, by such other…”

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